Legal Aspects of Port State Control

FACULTY OF LAW

Lund University

Anton Kulchytskyy

Legal Aspects of Port

State Control

Master thesis

30 credits

Supervisor: Assoc. Prof. Max MEJIA

Master´s Programme in Maritime Law

Spring 2012

2

Contents

SUMMARY 4

ABBREVIATIONS 5

1 INTRODUCTION 7

1.1 Overview 7

1.2 Purpose and research questions 8

1.3 Scope and delimitations 8

1.4 Research methodology and materials 8

1.5 Disposition 9

2 ANALYSIS OF PORT STATE JURISDICTION 10

2.1 Bases for the current PSC regime 10

2.1.1 The effect of the concept of nationality on the states’ practice of enforcement of port state jurisdiction 10

2.1.2 Legal basis for port state jurisdiction 11

2.2 The right of merchant vessels to access foreign ports 15

3 THE PSC FRAMEWORK AND MECHANISM 17

3.1 IMO guidelines on PSC 17

3.2 Analysis of regional PSC regimes 22

3.2.1 Paris MoU 25

3.2.2 Tokyo MoU 28

3.2.3 USCG PSC programme 29

3.3 Comparison of PSC in UK and Ukraine 33

4 LEGAL IMPLICATIONS OF PSC DETENTION 42

4.1 Undue detention 42

4.2 Effect of PSC detention on the contracts of affreightment and marine insurance 47

4.3 Allocation of PSC detention risk in time charter parties 53

5 DEVELOPMENT OF PSC AND OTHER WAYS FOR ASCERTAINING OBSERVANCE OF IMO INSTRUMENTS 57

5.1 Intensifying interrelation between PSC and FSI 57

5.2 Consideration for possible strengthening of IMO regulation on ROs 63

5.2.1 International legal framework on delegation of flag state duties to ROs 63

3

5.2.2 EU standards for ship inspection and survey organisations 66

5.2.3 Examination of classification societies acting as ROs 69

5.2.4 Analysis of PSC statistics on performance of ROs 70

5.2.5 Development of IMO Code on ROs 71

5.3 Consideration of universal PSC regime 75

6 CONCLUSIONS 81

ANNEX 1 COMPARISON OF MAIN PSC MOUS PROVISIONS 86

ANNEX 2 GENERAL PSC DATA 2011 88

ANNEX 3 DYNAMICS OF PSC DETENTIONS 90

BIBLIOGRAPHY 92

TABLE OF CASES 98

4

Summary

Port state control plays a central role in maritime safety and protection of

marine environment and it becomes more significant in protection of

seafarers’ rights. This thesis integrates discussion and consideration of

different legal aspect of PSC in order to present a comprehensive view on it.

First, the legal foundation of port state jurisdiction is examined. It is

explored through its elements where PSC is a considerable part. Provisions,

instituting the international legal regime on PSC are looked in greater

detail. The question, whether there is a right of merchant vessels to access

foreign ports, is answered.

Second part of the thesis examines the international and regional PSC

framework and its mechanism. The essence of guidelines of the

International Maritime Organisation on PSC and their comparison with the

regional Memoranda of Understanding has been provided. The significant

incorporation of the provisions of the IMO guidelines into the regional

MoUs has been exhibited. Analysis and comparison of the regional MoUs

among each other have been made, which indicate some degree of similarity

among certain groups of the regional MoUs on one side and uniqueness of

other MoUs on the other side. National legal arrangements of PSC has been

shown on two different jurisdiction, namely UK and Ukraine.

Besides the side of public law, which PSC has arisen out of, PSC detention

has legal implications for private law. Therefore, third part of the thesis

discusses such issues as undue delay, effect of PSC detention on the

contracts of affreightment and marine insurance, and allocation of the risk of

PSC detention in time charter parties. PSC detention may cause damages or

repudiation of the counterparty’s obligations in relation to contracts of

affreightment and marine insurance. It also may trigger to go the vessel off-

hire in time charterparties.

The last part of the thesis focuses on contemporary development on PSC.

The need and possibility for establishment of universal PSC regimes are

discussed. The main problems of current PSC regimes and obstacles in

establishment of one global PSC regime are identified. Although it was

concluded that for the moment universal PSC regimes is not possible, the

contemporary development of cooperation among the regional MoUs and

even with a private sector has been exposed. Interrelation between PSC

and flag state implementation has been shown through the use of the PSC

statistics in Voluntary IMO Member State Audit Scheme and, in its turn, the

relevance VIMSAS for assessment of ship’s risk profile in Paris MoU.

Distinctive features of PSC and flag state control are also explained. Taking

into consideration that recognised organisations play a significant role for

facilitation of shipping safety and protection of marine environment in

general and PSC in particular, the possibility to reinforce the IMO

regulation on ROs is discussed. The current regime on ROs has been

examined, and effectiveness of ROs has been assessed with help of the PSC

statistics. The thesis suggests an idea how to upgrade recently elaborated

IMO code on ROs in order to strengthen the international regime on ROs.

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Abbreviations

Abuja MoU Memorandum of Understanding on Port State

Control for West and Central African Region

AFL International Convention on the Control of

Harmful Anti-fouling Systems on Ships, 2001

Black Sea MoU Memorandum of Understanding on Port State

Control in the Black Sea Region

BUNKER International Convention on Civil Liability for

Bunker Oil Pollution Damage, 2001

Caribbean MoU Memorandum of Understanding on Port State

Control in the Caribbean Region

COLREG Convention on the International Regulations for

Preventing Collisions at Sea, 1972

EMSA European Maritime Safety Agency

Equasis MoU Memorandum of Understanding on the

establishment of the Equasis information system

CHS Convention on the High Seas of 29 April 1958

CIC Concentrated Inspection Campaigns

CLC International Convention on Civil Liability for

Oil Pollution Damage, 1969

FCR Federal Code of Regulations

FSC Flag State Control

FSI Flag State Implementation

IACS International Association of Classification

Societies

ICJ International Court of Justice

Indian MoU Memorandum of Understanding on Port State

Control for the Indian Ocean Region

ISPSU Inspection of State Port Surveillance of Seaport

of Ukraine

LOADLINE International Convention on Load Lines, 1966

MARPOL International Convention for the Prevention of

Pollution from Ships, 1973, as amended

Mediterranean MoU Memorandum of Understanding on Port State

Control in the Mediterranean Region

MIMSAS Mandatory IMO Member State Audit Scheme

MLC Maritime Labour Convention, 2006

MPEC Marine Environment Protection Committee

MSC Maritime Safety Committee

MSCU Merchant Shipping Code of Ukraine

MSM Marine Safety Manual

NOA Notice of Arrival

NVIC Navigation and Vessel Inspection Circular

Paris MoU Paris Memorandum of Understanding on Port

State Control

PSCI Ukrainian Port State Control Inspectorate

6

PSCP Unites States Port State Control Programme

PSEJ Port State Enforcement Jurisdiction

PSJ Port State Jurisdiction

Riyadh MoU Riyadh Memorandum of Understanding on Port

State Control

RO Recognised organisation

RSO Recognised security organisation

SOLAS International Convention for the Safety of Life at

Sea, 1974, as amended

STCW International Convention on Standards of

Training, Certification and Watchkeeping for

Seafarers

TCC Technical Cooperation Committee

Tokyo MoU Memorandum of Understanding on Port State

Control in the Asia-Pacific Region

TONNAGE International Convention on Tonnage

Measurement of Ships, 1969

VIMSAS Voluntary IMO Member State Audit Scheme

Viña del Mar MoU Latin American Agreement on Port State Control

of Vessels

UMRI State Inspectorate of Ukraine for Maritime and

Inland Water Transport Safety

(Ukrmorrichinspektsia)

UNCLOS United Nations Convention on the Law of the

Seas of 10 December 1982

USCG United States Coast Guard

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1 Introduction

1.1 Overview

Shipping is a truly international industry with its uniqueness pertaining to

the fact that a commercial ship plies from one jurisdiction to another.

Therefore, there is strong necessity for international cooperation in order to

achieve a challenging goal that it is safe ships and crew as well as clean

seas. The part of shipping history is the history of maritime casualties and

incidents such as Titanic, Torrey Canyon, Amoco Cadiz, Erika and Prestige,

which caused loss of many lives and significant marine pollution. These

marine catastrophes became a catalyst for emergence and development of

the international maritime regulatory conventions such as International

Convention for the Safety of Life at Sea and International Convention for

the Prevention of Pollution from Ships. Elaboration of the internationally

agreed standards with respect to construction, design and equipment of

ships, navigation, manning, prevention of pollution, seafarers’ educational

and training qualification through the conclusion of respective conventions

and provisions of United Nations Convention on the Law of the Seas

crystallising respective international customary law and evolving them into

the progressive development of international maritime law allowed to make

a step further. Inspection regime was embedded into those regulatory

conventions and subsequent regional cooperation on port state control

developed. PSC has a number of legal facets to be examined and analysed.

First, the international legal foundation of port state jurisdiction with focus

on PSC must be examined. Besides the international legal regime on PSC,

there is a soft law comprised of the guidelines of the International Maritime

Organisation and the regional Memoranda of Understanding, which

constitute the international and regional PSC framework and establish its

mechanism. The regional MoUs play a coordinating role and facilitate the

cooperation among whole regions. Nevertheless, legal norms, which govern

PSC inspections, are found in the national law of a port state. Therefore, it is

important to understand how the international legal norms and guidelines on

PSC are implemented in the national law of a port state.

There is also a private law aspect of PSC. Namely, it is legal implications

arising out of PSC detention. It means that the foreign vessel, being in any

port, may be prohibited to proceed to sea, unless those deficiencies, found

during the PSC inspection, are rectified. Practically, it implies a financial

loss for the charterers, deprived of the use of the vessel. Found deficiencies

may be used as an evidence of the vessel’s unseaworthiness, which may

cause damages or even repudiation of the counterparty’s obligations in

relation to the contract of affreightment and marine insurance.

In order to understand the contemporary development of PSC, it is also

important to examine affiliated mechanisms for facilitation of observance of

the IMO regulations since, united by common goal, they start developing in

tandem. There is possibility to interrelate PSC with flag state

implementation now. Furthermore, it is possible to assess effectiveness of

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recognised organisations with help of the PSC statistics. However,

preliminarily, recent maritime casualties give grounds to consider current

effectiveness of ROs as rather insufficient. Therefore, the prospects how to

reinforce the current international regime on ROs must discussed. In the

end, there are academic suggestions that it is a time to construct one global

PSC regime, which must be considered through the prism of the necessity

and possibility as it may be a further step in the evolution of PSC.

1.2 Purpose and research questions

The purpose of this thesis is to draw the single picture showing all legal

components of PSC and provide an analysis of each of them. There are

following research questions to be answered in this thesis:

1. What is the notion, scope and basis for PSJ, which embraces PSC?

2. What triggered the development of PSC?

3. Does the right to access ports exist in international law?

4. What is the international and regional framework of PSC and their

correlation?

5. What are the national arrangements on PSC?

6. What are the legal implications of PSC?

7. Is there a correlation and interdependence between PSC and FSI?

8. What is the role of ROs with respect to FSI and PSC?

9. What is the current ROs performance measured through PSC

statistics?

10. Is there a possibility to reinforce international legal regime on ROs?

11. Is there a need for establishment of universal PSC regime?

12. Is it possible to establish universal PSC regime?

1.3 Scope and delimitations

The scope of the thesis covers legal aspects of PSC in terms of international

legal basis of PSJ, IMO guidelines, regional PSC regimes, domestic

arrangements of chosen states, legal implications for private shipping,

interrelation with FSI, significance of ROs, contemplation of global regime.

Delimitations of the thesis lie within merchant shipping. This thesis does not

examine PSC fishery issues. The thesis focuses only on principal

international maritime regulatory conventions dealing with PSC such as

SOLAS, MARPOL, STCW, LOADLINE, TONNAGE, COLREG.

1.4 Research methodology and materials

The methodology employed in this thesis with a view to achieve its purpose

is comprised of:

the dogmatic method to illustrate the legal concepts of PSJ, PSC, FSI

and FSC;

the dialectical method to indicate the existing scholarly arguments

on abovementioned legal concepts;

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the analytic method to find the interrelation between PSC and FSI,

both PSC and FSI interrelation with ROs, and to examine the

relevant legislation and judicial practice relating to PSC;

the statistical method to show the performance of ROs;

the comparative method to evaluate and contrast the regional MoUs

and domestic law of chosen states.

During composing the thesis, different sources of materials are used. They

are legal textbooks and articles, PhD and master theses, international

conventions, IMO resolutions, the regional MoUs, EU and national

legislation, judicial cases, IMO FSI Subcommittee documents, annul PSC

reports and others.

1.5 Disposition

The thesis consists of four chapters and eleven subchapters aside from

introduction and conclusions. Chapter two is devoted to the analysis of PSJ.

It will examine the basis for PSC wherein the influence of the concept of

ship registration on states’ practice PSC is briefly looked and legal basis are

analysed.

Chapter three focuses on the PSC framework and mechanism. First

subchapter examines and compares the IMO guidelines with the regional

MoUs. Second subchapter compares the regional MoUs among themselves

wherein Paris and Tokyo MoUs and USCG PSC programme are looked in

detail due their specificity. Third subchapter compares PSC in UK and

Ukraine.

Chapter four analyses legal implications of PSC with focus on undue

detention, allocation of detentions risks in time charterparties, an effect of

detention on the marine insurance contract.

Chapter five explores other ways to assure the IMO regulatory instruments

besides PSC. First subchapter analyses the interrelation between FSI and

PSC. Subchapter two is devoted to the analysis of core mechanism of FSI,

that is to say, RO and possibility to strengthen it. Third subchapter

contemplates on the possibility of establishment of universal PSC regime.

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2 Analysis of Port State Jurisdiction

The concept of PSJ is relatively new in contrast to flag state jurisdiction,

which was initially established as one of the elements of manifestation of

state sovereignty. Previously, port states, in general, did not enforce its

jurisdiction over foreign ships entering their ports.1 However, this practice

has altered and evolved greatly during last sixty years. It is ironical that the

development of one legal phenomenon, namely PSC was triggered by the

malfunction of another legal phenomenon, namely FSC as one of the

principal duties of a flag state, which is examined in chapter 5. The aim of

this chapter is to examine different issues of PSJ in connection with PSC.

2.1 Bases for the current PSC regime

The notion of jurisdiction is a basic legal term associated with the power of

a state to exercise its authority based on the international principle of state

sovereignty.2 The law of the seas underpinned by general international law

contemplates three types of jurisdiction, namely flag, coastal and port state

jurisdictions. The PSJ embraces PSC, as it is, in fact, much wider notion. In

contrast to PSJ, flag state jurisdiction is associated with the concept of

nationality.

2.1.1 The effect of the concept of nationality on the states’ practice of enforcement of port state jurisdiction

The concept of the nationality of ships has arisen as a functional necessity to

solve the list of problems. Merchant ships sail through different maritime

zones and the argument is often raised that a ship appears to be in a legal

vacuum while travelling on the high seas where no state has jurisdiction

there. Though it is true, it would be difficult to contemplate the application

of the territorial principle of jurisdiction in order to determine the legal

regime of a ship as then it would have to comply with every requirement in

all regards of local law of coastal states due to the necessity that a ship on

the high seas must possess a nationality to be able to prove its existence”.3

The extent of the jurisdiction exercised by the flag state is summarised in

the article 94 of UNCLOS, which will be analysed thoroughly in

subchapter 5.1. However, for the purpose of this subchapter it is enough to

mention that the main responsibility for technical performance of a ship,

1 Dr. Z. Oya Özçayir, Port State Control (LLP, London 2001) 74

2 Malcolm N. Shaw, International Law (6

th edn Cambridge University Press, Cambridge

2008) 645 3 Pourmotamed, Parallel Registration of Ships (Göteborg University, Sweden 2008) 15

11

which has relation to shipping safety and prevention of pollution, rests with

a flag state.

From the second half of the twentieth century, shipping companies

progressively more registered their ships with the flag states providing the

service of open registries to foreign ships. The registration in such states

offered financial and other advantages over the registration in home states.

This practice resulted in emergence of a great number of substandard ships

flying under so-called flags of convenience. Part of the economic rationale

for flagging out, for example, was to escape from the requirements about

manning imposed by certain states upon ships flying their flags.4 Another

attractive incentive was a tonnage tax instead of an income tax required in

home states. However, those open registry flag states were not in position to

manage the hugely attracted fleet flying under their flag. Therefore, they did

not properly discharge their international obligations as a flag state.

Moreover, some of them were even negligent to carry out FSC, being more

focused on the commercial part of registration. The main critics of this

practice were based on lack of the genuine link between the flag state and

the ship registered, which is required by UNCOLS. However, the concept of

open registry flag state has sustained the test of the time that can be also

proved that United Nations Convention on Conditions for Registration of

Ships including the economic nexus of flag state with its ship did not enter

into force due to lack of ratifications. Nevertheless, the response of the

international community against substandard shipping did not hesitate long.

The concept of PSC was employed and further developed.

2.1.2 Legal basis for port state jurisdiction

The primary legal sources proving for PSJ are found in international

customary and treaty law. Customary international law entitles a port state

with vast discretion to exercise jurisdiction over its ports. The ICJ in the

Nicaragua case explicitly stated it and it was reflected in UNCLOS.

Customary international law on PSJ is based on the fundamental principal of

sovereignty integrated in the core of international law. The principal of

sovereignty has several elements. The element that is responsible for PSJ is

namely territorial sovereignty. The positive (in contrast to negative) aspect

of territorial sovereignty signifies that a state has an exclusive competence

over its own territory as Malcolm Shaw indicates.5 It was accurately stated

that when a ship enters a foreign port it put them within the territorial

sovereignty of the coastal state.6 The port is a part of state’s internal waters,

which have the same legal status as a part of land in contrast to territorial

waters, for example. It is explained that the ship in the port is subject to the

same jurisdiction as an alien on land.7 Therefore, a foreign ship must

4 David Anderson, Modern Law of The Sea: Selected Essays (Publications on Ocean

Development, Volume 59 Martinus Nijhoff Publishers, Leiden/Boston 2008) 269 5 Shaw, supra note 2, 490

6 R.R. Churchill, A.V. Lowe, The Law of the Sea (3rd edition Juris Bulishing, Oxford

1999) 54 7 Ted L. McDorman, ‘Regional Port State Control Agreements: Some Issues of

International Law’ (2000) 5 Ocean & Coastal L.J. 207

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comply with local law as well as law of the flag state. It is stated that there

is no any contradiction between port and flag state jurisdiction as according

to international law it is clear that the authority of a port state surpasses.8

However, if a ship is forced to call the port due to emergency, that is to say,

not voluntary, the ship shall be excepted from port state jurisdiction.9

Conventionally, port states seldom interfered with foreign flag vessels

unless it is concerned with the public order of the state.

Second source of law on PSJ is UNCLOS provisions. PSJ under UNCLOS

contains two distinctive elements: PSC and port state enforcement

jurisdiction vis-à-vis marine pollution. PSEJ relates to the port state’s

authority to prosecute ships and to impose fines on them for violations of

international rules and standards on pollution from ships. The principal

distinction between PSC and PSEJ is that in the case of PSC, the

administrative measures of control, such as detention of a ship in the port

until corrective measures have been taken or ordering it to proceed to the

nearest shipyard for repairs, and no prosecution of the ship for the alleged

breach of its legislation or an international convention is initiated. Hence,

prosecution of ships is a distinctive feature of PSEJ.10

The common

characteristic of PSC and PSEJ that is both are derived from an initiative on

protection of marine environment. The concept1of PSJ over enforcement of

the international1conventions with respect to protection1of marine

environment is quite new. The article 211(3) of UNCLOS lays1the basis of

PSJ1under which states may establish particular requirements for the

prevention, reduction1and control of pollution1of the marine

environment1as a condition for the entry1of foreign vessels1into their ports

or internal1waters or for calls at1their offshore terminals.11

While

establishing1state laws with regard to1prevention, 1reduction and control

of1pollution, states should introduce legislation within1certain limitations.

The article 211 gives major an emphasis to agreed international rules and

standards.

The article 218(1) of UNCLOS provides that port states can

institute1proceedings in respect of any discharge1from a vessel outside the

internal1waters, territorial sea or exclusive1economic zone of the port1state

in violation of applicable1international1rules and standards

(primarily1MARPOL) established through the competent1international

organisation (commonly agreed to be IMO). The article 218 (2) says that no

proceedings under the1first paragraph shall be instituted1regarding the

violation in the internal1waters, territorial sea or1EEZ of another state

unless1requested by that state, the flag1state, or a state threatened1by the

8 R.R. Churchill, A.V. Lowe, supra note 4

9 Ibid

10 Ho-Sam Bang, ‘Port State Jurisdiction and Article 218 of the UN Convention on the Law

of Sea’ (2009) 40 J. Mar. L. & Com. 292 11 United Nations Convention on the Law of the Sea (adopted 10 December 1982, entered

into force 14 November 1994) p. 107

<http://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm>

accessed 27 October 2011

http://www.un.org/Depts/los/convention_agreements/texts/unclos/UNCLOS-TOC.htm

13

discharge1violation or unless the violation1has caused or is likely to

cause1pollution in the internal1waters, territorial sea or EEZ of the

state1instituting the proceedings. This is a far reaching1power even though

it remains1very much1contingent upon the wishes1of the flag1and

coastal1states. The article 218(3) 1requires the port state to

investigate1possible discharge1violations when requested1by the flag

or1coastal state. The coastal1state is the state1off whose coast the

violation is alleged to have occurred. Under the article 218(4),

proceedings1commenced pursuant to the requested investigation1must be

suspended at request of the1state where the violation1occurred. The article

219 obliges port1states to prevent1unseaworthy vessels from1sailing. The

article 94(6) asks port1states to notify the flag1state if a ship fails

the1conditions required to be1upheld by the flag1state1under the article194.

Pursuant to the article 2261detention1can be for no longer than it is

essential1for the1purposes of1investigation. The article1226(1)(b)

requires1prompt release once a violation1is found but a bond or

financial1security must be1given before release — what constitutes1prompt

release1can be litigated1before the Law of the Sea Tribunal under the

article1292. According to the article1228, the flag state1has a right of pre-

emption. If it starts proceedings within 61months the port

state’s1proceedings are suspended. If the flag1state is1notorious for its

reluctance in enforcing international standards the proceedings are not

suspended. Pursuant to the1article1228(2) a penalty cannot be imposed after

three years from the1date of the violation. Pursuant to the article1230,

money1penalties are demanded but there are some1exceptions. The

article12311requires the notification1to the flag state and other1states of

measures taken. Under the article1233 (subject to the article 42) an

incident1occurring in a strait1used for international1navigation is exempt

from this PSC. The article12361explains these provisions1do not apply1to

war ships or ships claiming1sovereign immunity.12

Erik Jaap Molenaar describes the necessity for PSJ as not only to serve

national interests of a port state but the interests of international community

to police such areas of shipping and use of seas as safety at sea, marine

environment protection, sustainable utilization of marine living resources

and safeguarding of marine biodiversity.13

Besides being the effective

means to enforce the respective international rules, PSC plays a significant

role in remedying distorted completion within shipping business caused by

flag states, which require less stringent standards applicable to the ships

flying their flag. Mr. Molenaar also points out that if port state jurisdiction is

optional and to take actions against substandard ships is left to the discretion

of a port state, then some ports may attempt to benefit from it as a port of

convenience. It is, definitely, a weighty argument in support of the

statement that the exercise of PSJ is not only the right of a port state but also

an important duty under UNCLOS. Furthermore, there are several objective

12

Brian F. Fitzgerald, ‘Port State Jurisdiction and Marine Pollution Under UNCLOS III’

(1995) 11 MLAANZ Journal 37 13

Erik Jaap Molenaar, ‘Port State Jurisdiction: Towards Mandatory and Comprehensive

Use’ in David Freestone, Richard Barnes and David Ong (eds), The law of the Sea:

Progress and Prospects (Oxford University Press, Oxford 2006) 192

14

factors, which induce to operate as convenient as possible. Local economy

of a port may be greatly dependent on calling foreign vessels that generates

revenue from port fees, use of port facilities and services, or port state may

be dependent on import of certain commodities as iron ore, oil or grain.

Consequently, such port state will not be interested to enforce

internationally agreed standards and will tend to attract substandard ships.

Even though PSC was devised for protection of marine pollution, many

IMO conventions recognise PSC and contain the provisions that allow such

control. In fact, the first provision on PSC in the international convention is

found in the article 61 of SOLAS 1914, which envisaged following:

Every ship holding a Safety Certificate issued by the officers of the

Contracting State to which it belongs, or by persons duly authorised by that

State, is subject in the ports of the other Contracting States to control by

officers duly authorised by their Governments in so far as this control is

directed towards verifying that there is on board a valid Safety Certificate,

and, if necessary, that the conditions of the vessel's seaworthiness correspond

substantially with the particulars of that certificate ; that is to say, so that the

ship can proceed to sea without danger to the passengers and the crew.14

SOLAS 1914 was a response to the Titanic catastrophe. However, the first

version of SOLAS did not enter into force due to the First World War. The

contemporary regime of PSC is greatly based on SOLAS 1974 and

MARPOL 73/78, lately other IMO conventions were introduced with PSC

provisions. Currently, PSC is provided by the regulation 19 of chapter I,

regulation 6.2 of chapter IX, regulation 4 of chapter XI-1 and regulation 9 of

chapter XI-2 of SOLAS, as modified by the SOLAS Protocol 1988; the

article 21 of LOADLINE, as modified by the LOADLINE Protocol 1988;

articles 5 and 6, the regulation 11 of Annex I, regulation 16.9 of Annex II,

regulation 8 of Annex III, regulation 13 of Annex IV, regulation 8 of Annex

V and regulation 10 of Annex VI of MARPOL; the article X of STCW; the

article 12 of TONNAGE and the article 11 of AFS. The article 4 of ILO 147

contemplates PSC basis and soon entering into force MLC provides it

explicitly with the regulation 5.2.1.

It is notable that SOLAS does not contain the article on PSC in contrast to

other applicable conventions. It may be regarded as a discrepancy of

SOLAS as the legal norm containing regulation of PSC is placed on lower

level within annexes. If a provision of an annex is in contradiction with an

article, the article should prevail. However, it seems that it should not create

a problem as articles of SOLAS are of a very general nature. They contain

the most of norms, which are general for any international convention or

treaty, for example, as entry into force, amendments, denunciation,

depository, languages. The rest of articles contain general obligations of

parties to the convention, provisions on application and special cases for

force majeure and carriage of persons in emergencies and few others.

Nevertheless, there is a potential intrinsic problem. What if any provision of

14

International Convention for the Safety of Life at Sea (adopted 20 January 1914, not

entered into force) p.90

<http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofSOLAS/Docum

ents/SOLAS%201914.pdf> accessed 29.11.2012

http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofSOLAS/Documents/SOLAS%201914.pdf

http://www.imo.org/KnowledgeCentre/ReferencesAndArchives/HistoryofSOLAS/Documents/SOLAS%201914.pdf

15

an annex appears to be in contradiction with the regulation 19, then, the

question arises whether the regulation 19 will prevail. The immediate

answer might be that “yes”, it will, taking into consideration that the

provision on PSC is placed in the Annex I which is titled as “General

provisions”. The position of this provision indicates on its general nature

and other regulations must be in conformity with it. Therefore, it can be

argued that if any provision of SOLAS is not in accordance with the

regulation 19, then, the regulation on PSC must prevail. However, this

situation can be seen from a different angle. Namely, if a contradictory

provision contains a specific rule then it must prevail, as it is applicable only

in certain cases or on certain conditions. Although there is a little chance to

happen for such situation, it does not justify its existence.

There are several features, pertaining to every regulation on PSC of the

respective conventions:

an inspection shall be conducted only by officers duly authorized by

the government of a port state;

an inspection shall be limited to the check of certificates unless there

are clear grounds to consider the ship as substandard;

where the certificate has expired or ceased to be valid, PSCO shall

take steps to ensure that the ship shall not sail until it can proceed to

sea without danger to the ship, marine environment or persons on

board;

the flag state and RO where appropriate of the ship detained shall be

notified;

all possible efforts shall be taken to avoid undue detention or delay

of a ship;

unduly detained or delayed ship shall be entitled to compensation for

any loss or damage suffered.

As Mr. Molenaar states PSJ has become increasingly complex. It is not just

a corollary of the updating of the relevant international instruments but also

their continuous development into related or entirely new subject areas.15

Indeed, PSC is internationally introduced through the earlier SOLAS safety

provisions and then institutionalised by UNCLOS with MARPOL in view.

However, now PSC embraces much more areas such as seafarers’ labour

conditions under ILO 147 and soon MLC, mandatory marine insurance of

oils spills through CLC and BUNKER, which are applicable instruments

under Paris MoU. It indicates that PSJ is an evolving concept and perhaps,

now it is not possible to deduce those areas as international customary law,

however we are, definitely, witnessing the progressive development of PSJ.

2.2 The right of merchant vessels to access foreign ports

There are speculations on the academic ground and international forum

about the issue whether merchant ships are entitled to access foreign ports

15

Molenaar, supra note 13, 202

16

according to international law.16

It must be analysed as it, definitely,

constitutes a part of port state regime. Furthermore, a consequence of PSC

may be possible the denial of a port access to the particular vessel because

of their substandard condition. Paris MoU exercises the right belonged to

port states to control access to their ports. If a vessel is found to be

substandard for several times in connection with flying the flag of poor

performing state it will be banned to call the ports in Paris MoU region.

As it was explained in the previous subchapter, the distinctive feature of

internal waters from other maritime zones (territorial sea, contiguous zone,

exclusive economic zone) is that a state has, in general, full sovereignty over

it. However, it was states in the Saudia Arabia v. Aramco case that:

“according to a great principle of public international law, the ports of every

state must be open to foreign merchant vessels and can only be closed when

the vital interests of the state so require.”17

Lately, ICJ in the Nicaragua

case asserted that it is “by virtue of its sovereignty that the coastal state may

regulate access to its port.18

It is possible to say that customary international

law does not recognize the existence of the right of access to a port by a

foreign vessel. However, it presumed that ports are open unless a state

indicates otherwise, so it is a presumption only and not a legal obligation.

1923 Convention and Statute on the International Regime of Maritime Ports

provide that vessels, except fishing vessels, of contracting parties have a

right of port access. It has been asserted that the convention was a

codification of international customary law respecting port access. However,

it is not in consistency with Nicaragua case.

Besides the convention, there are some bilateral agreements between states

providing for the reciprocal right to access the ports for the ships flying their

flag.19

It is again demonstrates that this right is not within generally

provided.

There are certain limitations of port state jurisdiction to deny access to

foreign ships. According to the international trade law principal of the most

favourable nation, if the state A grants access to the state B, the other states

shall enjoy the same regime of access to the ports of state A as the state B

has, provided that all states are party to the General Agreement on Trade

and Tariffs. However, this does not constrain the state A from denying

access to the particular ship of the state B or other states if it is found to be

substandard. Therefore, this limitation does not interfere with PSC. Another

limitation is that according to UNCLOS and international customary law, a

ship in distress shall be granted access to foreign ports. However, the

catastrophe of Prestige showed that this right may be neglected, that is, in

fact, a very negative practice and it was highly criticised by the international

community. Hence, there is no a general right of access to foreign ports.

16

George C. Kasoulides, Port State Control and Jurisdiction (Martinus Nijhoff publishers,

London 1993) 2-5 17

Saudi Arabia v. Arabian American Oil Co., 27 I.L.R. 117, 212 (Arb. Trib. 1958) 18

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United

States of America), Order of 26 September 1991, I.C.J. Reports 1991, 111 19

Gero Brugmann, ‘Access to Maritime Ports’ (Dr. jur. thesis, The University of New

South Wales 2003) 35

17

3 The PSC framework and mechanism

There are several layers of norms of different nature with respect to PSC,

which constitute its organisational and legal framework as well as its

mechanism. The first level, which was discussed in previous chapter,

establishes general universal principals of PSC, mainly contained in

UNCLOS and its legal foundation through international maritime regulatory

conventions. The next level lies within IMO guidelines, which provide

internationally recommended framework on which, further, regional MoUs

are based. The last level in this chain is particular state’s arrangements on

PSC. Each level has own peculiarities: scope, legal nature, application, etc.

Therefore, the left two levels must be studied in detail and that is a purpose

of this chapter.

3.1 IMO guidelines on PSC

The first IMO endeavour to bring the recommendatory framework of PSC

occurred in 1981.20

Since that, there were few amending resolutions21

with

the current version adopted in 2011.22

Gradually, the IMO PSC guidelines

have been becoming well elaborated and sophisticated.

The current resolution provides for the basic guidance (although it is quite

thorough) for conduction of PSC inspections, encourages consistency in the

conduction of such inspections and brings clarity for the procedure of

deficiencies assessment. While discussing the issue of the IMO resolutions

on PSC, the most important to highlight is their non-obligatory nature. In

contrast to some other IMO resolutions, which are made mandatory through

direct reference to them in the IMO regulatory conventions such as SOLAS

and MARPOL,23

the procedures for PSC has only persuasive character.

20

IMO Resolution A.466(12) Procedures for the Control of Ships

(adopted 19 November 1981) 21

IMO Resolution A.542(13) Procedures for the control of ships and discharges under

Annex I of the International Convention for the Prevention of Pollution from Ships, 1973,

as modified by the Protocol of 1978 relating thereto (adopted 17 November 1983);

IMO Resolution A.597(15) Amendments to the Procedures for the Control of Ships

(adopted 19 November 1987);

Resolution MEPC.26(23) Procedures for the control of ships and discharges under Annex II

of the International Convention for the Prevention of Pollution from Ships, 1973, as

modified by the Protocol of 1978 relating thereto MARPOL73/78 (adopted 8 July 1986);

IMO Resolution A.742(18) Procedures for the control of operational requirements related

to the safety of ships and pollution prevention (adopted 4 November 1993);

IMO Resolution A.787(19) Procedures for Port State Control

(adopted 23 November 1995);

IMO Resolution A.882(21) Amendments to the Procedures for Port State Control


IMO Resolution A.1052(27) Procedures for Port State Control, 2011 (adopted

30 November 2011) 23

See p. 65

18

Nevertheless, it will be shown that the significant volume of the provisions

of the IMO guidelines on PSC are incorporated into the regional MoUs that

indicates a considerable success of IMO to bring the global consistent

regime of PSC.

The resolution A.1052 (27) applies 8 instruments, namely they are: SOLAS,

SOLAS Protocol 1988, LOADLINE, LOADLINE Protocol 1988,

MARPOL, STCW, TONNAGE and AFS.24

Practice of regional MoUs with

respect to applicable instruments is quite diverse with range from 7 to 15

instruments.25

Indeed, it is of cornerstone obstacles for harmonisation of

regional MoUs as it is a matter of regional policy among states wherein

IMO position reflects the approach of compromise among them. Within the

same section two very important principles are embedded, which are found

universal recognition in the regional MoUs. First, is no favourable treatment

principle according to which ships of non-Parties or below convention size

should be given no more favourable treatment in order to ensure that

equivalent surveys and inspections are conducted and an equivalent level of

safety and protection of the marine environment is ensured.26

Where ships

of non-parties states to IMO regulatory conventions are not provided with

appropriate certificates, or crew members do not possess STCW certificates,

it should be satisfied that such ship or crew do not present a danger to ship

or persons on board or an unreasonable threat of harm to the marine

environment. Another principle stipulates that in exercising PSC, only those

provisions of the conventions, which are in force and which states have

accepted, should be applicable.27

Hence, within one regional PSC regime

there might be different practice of application of instruments, which is

quite undesirable for the matter of consistency, especially in those regions

where the cooperation on PSC is weak.

24

IMO Resolution A.1052(27), supra note 22, sec. 1.2.1 25

See p. 23 26

IMO Resolution A.1052(27), supra note 22, sec. 1.2.2, 1.5;

Paris Memorandum of Understanding on Port State Control (adopted 26 January 1982,

entered into force 01 July 1982), sec. 2.4;

Memorandum of Understanding on Port State Control in the Asia-Pacific Region (signed 1

December 1993, entered into force 01 April 1994), sec. 2.5;

Memorandum of Understanding on Port State Control for the Indian Ocean Region

(adopted 05 June 1998, entered into force 01 April 1999), sec. 2.4;

Memorandum of Understanding on Port State Control in the Black Sea Region (signed 07

April 2000, entered into force 19 December 2000), sec. 2.4;

Latin American Agreement on Port State Control of Vessels (adopted 05 November 1992,

entered into force for each member upon notification), sec. 2.3;

Memorandum of Understanding on Port State Control in the Caribbean Region, 1996

(signed 09 February 1996, entered into force each member upon notification), sec. 2.4;

Memorandum of Understanding on Port State Control for West and Central African Region

(signed 22 October 1999, entered into force each member upon notification), sec. 2.4;

Memorandum of Understanding on Port State Control in the Mediterranean Region

(adopted 11 July1997, entered into force each member upon notification), sec. 2.4;

Riyadh Memorandum of Understanding on Port State Control in the Gulf Region (signed

June 2004, entered into force each member upon notification), sec. 2.4 27

Ibid, IMO Resolution A.1052(27), supra note 22, sec. 1.3; Paris MoU, sec. 2.3; Tokyo

MoU, sec. 2.4; Indian MoU, sec. 2.3; Black Sea MoU, sec. 2.3; Viña del Mar MoU, sec.

2.2; Caribbean MoU, sec. 2.3; Abuja MoU, sec. 2.3; Mediterranean MoU, sec. 2.3; Riyadh

MoU, sec. 2.3

19

Sections 1.7 of the resolution A.1052(27) provides essential definitions.

Two of them are found reflection in the text of MoUs. Section 1.7.5 defines

an inspection as “a visit on board a ship to check both the validity of the

relevant certificates and other documents, and the overall condition of the

ship, its equipment and its crew” that is in correspondence with equivalent

provisions of almost all regional MoUs.28

Paris MoU does not contain such

definition. However, there are some modifications made in the text of MoUs

as well. Provisions of number of MoUs are complemented with the check of

the living and working conditions of the crew.29

In contrast, some other

MoUs do not contain this complement but have the focus on hygienic

conditions on board.30

Another very important definition of “clear grounds” is given by the

resolution,31

which is incorporated with slight differences in the MoUs.32

“Clear grounds” are defined as “evidence that the ship, its equipment, or its

crew does not correspond substantially with the requirements of the relevant

conventions or that the master or crew members are not familiar with

essential shipboard procedures relating to the safety of ships or the

prevention of pollution.” Again, Paris MoU does not enclose the definition

in the body text of the MoU but it is stipulated in the ninth annex thereto.

The implication when there is a belief for clear grounds is a conduction of

more detailed inspection. The types of inspections and other provisions

relating to the inspection process must be looked in detail.

The given definition of an inspection above is within the meaning of the

initial inspection. It is stipulated that in the conduction of initial inspection

the validity of the relevant certificates and other documents and the overall

condition of the ship should be checked.33

If the certificates are valid and the

PSCO has general impression of a good standard of maintenance onboard

then inspection should be confined to reported or observed deficiencies.34

It

is very important provision, which sometimes may be neglected by

inexperienced PSCO. As any further check is a loss of time for a shipowner,

PSCO must be very cautious about it, of course, in no prejudice of quality of

an inspection. In conjunction with this provision anther caution is stipulated

that “all possible efforts should be made to avoid a ship being unduly

detained or delayed. If a ship is unduly detained or delayed, it should be

entitled to compensation for any loss or damage suffered”35

that finds

acceptance of all regional MoUs.36

Therefore, it is very important to have

28

Tokyo MoU, sec. 3.1; Indian MoU, sec. 3.1; Black Sea MoU, sec. 3.1.1; Viña del Mar

MoU, sec. 3.3; Caribbean MoU, sec. 3.1; Abuja MoU, sec. 3.1.1; Mediterranean MoU, sec.

3.1.1; Riyadh MoU, sec. 3.1 29

Black Sea MoU, sec. 3.1.1; Abuja MoU, sec. 3.1.1; Mediterranean MoU, sec. 3.1.1 30

Tokyo MoU, sec. 3.1; Indian MoU, sec. 3.1; Riyadh MoU, sec. 3.1 31


Tokyo MoU, sec. 3.1; Indian MoU, sec. 3.2.1; Black Sea MoU, sec. 3.2.1; Viña del Mar

MoU, sec. 3.3; Caribbean MoU, sec. 3.1; Abuja MoU, sec. 3.2.1; Mediterranean MoU, sec.

3.2.1; Riyadh MoU, sec. 3.2 33


Ibid, sec. 2.2.4 35

Ibid, sec. 2.1.4 36

Paris MoU, sec. 3.13; Tokyo MoU, sec. 3.13; Indian MoU, sec. 3.10; Black Sea MoU,

sec. 3.10; Viña del Mar MoU, sec. 3.13; Caribbean MoU, sec. 3.11; Abuja MoU, sec. 3.10;

Mediterranean MoU, sec. 3.10; Riyadh MoU, sec. 3.21

20

detailed instruction for PSCO how to conduct inspection. Before embarking

onboard PSCO may gain the impression of standard of maintenance of a

ship from such items as the condition of her paintwork, corrosion or pitting

or unrepaired damage.37

The resolution provides the examples of clear grounds among which there

are the absence of principal equipment or arrangements required by the

applicable conventions; evidence from a review of the ship’s certificates that

a certificate or certificates are clearly invalid; evidence from the PSCO’s

general impressions and observations that serious hull or structural

deterioration or deficiencies exist that may place at risk the structural,

watertight or weathertight integrity of the ship; indications that key crew

members may not be able to communicate with each other or with other

persons on board.38

It is also provided for the requirements on professional profile,

qualifications and training to be met by PSCOs. As a general rule, only

qualified officers whose qualification corresponds to the level of

experienced flag state surveyors with ability to communicate in English

with key crew should carry out PSC. PSCOs engaged in inspecting

operational requirements should be qualified as a master or chief engineer

and have appropriate seagoing experience or have qualifications in a

maritime related field sufficed the educational standards required by the

maritime administration and be specially trained to ensure adequate

competence and skills. PSCO training should include necessary knowledge

of the provisions of the applicable conventions, which are relevant to the

conduct of PSC, taking into account the latest IMO model courses for

PSC.39

When the required professional expertise cannot be provided by the

PSCO, any person with the required expertise may assist him.

The resolution contains important cautionary rule that PSCOs should not

have any commercial interest in the carrying out inspections and inspecting

ships. Moreover, assuring independence and impartiality of PSCO, they

should not be employed by or otherwise engaged in the work of ROs. It is

notable that Tokyo and Caribbean MoUs in contrast to the rest of MoUs40

have not incorporated this rule that gives the ground for possible

prejudicially conducted inspections in those regions if, for example, PSCOs

have association with ROs. Perhaps, those provisions could be more

elaborated to address the problem of bribery existing in some PSC regions.

Additionally, the resolution stipulates that PSCO should carry identity card

issued by the port state and indicating that the PSCO is authorized to carry

out the control.

Chapter four of the IMO resolution A.1052 contains reporting requirements.

Section 4.1.1 concerns that the master of the ship is provided with a

document showing the results of the inspection. Details of any action taken

by the PSCO, and a list of any corrective action to be initiated by the master

37


Ibid, sec. 2.4.2 39

Ibid, sec. 1.9 40

Paris MoU, sec. 3.3; Indian MoU, sec. 3.5.3; Black Sea MoU, sec. 3.5.3; Viña del Mar

MoU, annex 5; Abuja MoU, sec. 3.5.3; Mediterranean MoU, sec. 3.5.3; Riyadh MoU, sec.

3.10

21

and/or company must be included. As it may be qualified as one of essential

rights of the master and shipowner with respect to PSC, this provision is

included in every MoU.41

Furthermore, in the case of a detention, at least an initial notification should

be made to the flag state administration as soon as practicable.42

As foreign

ship is under sovereign jurisdiction of flag state, it is crucial to notify it

about any detention of a ship under its flag. Every MoU acknowledges this

practice.43

Although the wording of the rule is quite different among MoUs.

The resolution provides for the situation where “the ship has been allowed

to sail with known deficiencies, the authorities of the port State should

communicate all the facts to the authorities of the country of the next

appropriate port of call, to the flag State, and to the recognized organization,

where appropriate.”44

To allow the ship is to sail without rectified

deficiencies is very dangerous as it may lead to a casualty if the shipowner

has not voluntary incentive to do it. However, sometimes it is an only option

as it may happen that it is possible to take repair only in the next port of call.

Where, in the exercise of PSC, a party denies a foreign ship entry to the

ports or offshore terminals under its jurisdiction, whether or not as a result

of information about a substandard ship, it should forthwith provide the

master and flag state with reasons for the denial of entry.45

For the moment,

there is only one regional MoU, namely Paris MoU that utilises the right of

port state to ban access of ships to the ports of the region as ultimate

measure for substandard ships.46

This provision of the resolution is

incorporated in the annex four of Paris MoU.

In accordance with SOLAS regulation I/19, article 11 of MARPOL, article

21 of LOADLINE, or article X(3) of STCW, IMO must be reported about

every case of a detention of a ship. Section 4.1.5 of IMO resolution

A.1052(27) stipulates that such deficiency reports should be made in

accordance with the form given in appendix 13 or 16, as appropriate, or may

be submitted electronically by the port state or a regional PSC regime. On

receiving a report on detention, the flag state and, where appropriate, the RO

through the flag state administration should, as soon as possible, inform

IMO of remedial action taken in respect of the detention.47

In the interest of

making information regarding deficiencies and remedial measures generally

available, a summary of such reports should be made by the IMO in order

that the information can be disseminated to all member states to the

applicable conventions. In the summary of deficiency reports, an indication

should be given to the flag state action or whether a comment by the flag

41

Paris MoU, sec. 3.10; Tokyo MoU, sec. 3.12; Indian MoU, sec. 3.6.1; Black Sea MoU,

sec. 3.6.1; Viña del Mar MoU, annex 3, sec. 1.1.1; Caribbean MoU, sec. 3.10; Abuja MoU,

sec. 3.6.1; Mediterranean MoU, sec. 3.6.1; Riyadh MoU, sec. 3.12 42


Paris MoU Sec. 3.7; Tokyo MoU Sec. 3.8; Indian MoU Sec. 3. 3.6.2; Black Sea MoU

3.7; Viña del Mar MoU Annex 3 Sec. 1.1.3; Caribbean MoU 3.7; Abuja MoU Sec. 3.7;

Mediterranean MoU 3.7; Riyadh MoU Sec. 3.16 44


Ibid, sec. 4.1.2 46

Paris MoU, sec. 4 47

IMO Resolution A.1052(27), supra note 22, sec. 4.2.1

22

state concerned is outstanding.48

The appropriate IMO Committee should

periodically evaluate the summary of the deficiency reports in order to

identify measures that may be necessary to ensure more consistent and

effective application of IMO instruments, paying close attention to the

difficulties reported by the member states to the relevant conventions,

particularly in respect to developing countries in their capacity as port

states.49

The devised reporting system ensures the awareness of member

states about performance of flag states and provides vital practical

information about difficulties encountered. Furthermore, section 5.1.3

provides for the recommendations to address such difficulties, when

recognized by the appropriate IMO Committee be incorporated into the

applicable IMO instrument and any modifications relating to the procedures

and obligations should be made in the port state documentation. Application

of this provision is able to facilitate sustainable development of effective

functioning of PSC globally.

3.2 Analysis of regional PSC regimes

It is possible to distinguish ten regional PSC regimes, which cover almost

the whole globe. Further, it is possible and appropriate to classify them into

regional MoUs and domestic arrangements of particulate states. According

to this classification, there are nine regional PSC MoUs and USCG PSC

programme.

According to Dr. Özçayir, the origins of PSC lie in the Hague MoU signed

in 1978.50

However, it is deemed here that it would be more appropriate to

put it as the actual history of development of and cooperation on PSC since

1978. The origins of PSC may be traced back to the first version of SOLAS,

which was adopted in 1914 after sinking Titanic as it was showed in 2.1.2

subchapter.51

The chronological appearance of regional MoUs is shown in the table

below. The first contemporary regional MoU is Paris MoU, which was

evolved from Hague MoU after Amoco Cadiz incident catalysed

strengthening PSC in Europe. Some states participate in several MoU

simultaneously. For example, Russian Federation participates in Paris,

Tokyo and Black Sea MoU.

Regional MoU Foundation year Number of

participating/cooperating

states currently

Paris MoU 1982 27

Viña del Mar MoU 1992 13/2

Tokyo MoU 1993 18/1

Caribbean MoU 1996 25

48

Ibid, sec. 5.1.1 49

Ibid, sec. 5.1.2 50

Dr. Z. Oya Özçayir, ‘The Use of Port State Control in Maritime Industry and Application

of the Paris Mou’ (2009) 14 OCLJ 208 51

See p. 14

23

Mediterranean MoU 1997 10

Indian MoU 1998 20

Abuja MoU 1999 22

Black Sea MoU 2000 6

Riyadh MoU 2004 6

As it was accurately indicated by Dr. Özçayir that MoU is not an

international convention, it is an administrative agreement, which does not

create internationally binding obligations for state parties. It is aimed to

build a framework of cooperation among the maritime authorities of a

region or a group of states with similar position on PSC. MoU provides

uniformity and harmonization for application, among participating states, of

the right of a port state to ascertain that calling ships are in compliance with

internationally agreed rules and standards on maritime safety and protection

of marine environment within its jurisdiction. The term “commitment” is

employed in the wording of the MoU texts instead of using words such as

obligation, duty, etc reflecting mandatory nature of the provisions.

It is showed in the previous subchapter that MoUs incorporate significantly

provisions and principles elaborated in the IMO resolutions on the

procedure for PSC. Moreover, relevant provisions on PSC of MoUs are very

similar in comparison with each other. Annex 1 contains the comparison

table of relevant provisions of MoUs, which illustrates the compositional

similarity of regional MoUs. Provisions, which are similar among majority

of MoU are coloured in bright green. Where there are two groups of MoUs

with similar provisions, the minor group is coloured in dark green.

However, some typical provisions are of slight difference among MoUs to

accommodate interests of regional states. Individually modified and

exclusive provisions have own colour pertaining to the particular MoU.

For example, in contrast to other MoUs containing the same type of

provision Riyadh MoU explicitly indicates that those exceptional

circumstances must be recognised by authority in order to provide access to

specific port for ship to minimize the risk of loss of life or of pollution.

Provisions, relating to the relevant instruments, are found to be similar

among MoUs with two differences. One is minor, namely that some MoUs

use wording “below 500 GT” and some employ the wording “non-

convention sized ships”. Another one is cardinal pertaining to the list of

applicable instrument. In fact, it is one of major differences and the obstacle

for harmonisation of regional MoUs. The table below shows the application

of relevant instruments among MoUs. There are only five instruments that

are in common for all MoUs.

No Instruments 1 2 3 4 5 6 7 8 9

1 LOAD LINES 66

2 LL PROT 88

3 SOLAS 74

4 SOLAS PROT 78

5 SOLAS PROT 88

6 MARPOL

7 STCW 78

24

8 COLREG 72

9 TONNAGE 69

10 ILO 147

11 ILO P147

12 CLC 1969

13 CLC PROT 1992

14 AFS 2001

15 BUNKER 2001

1- Abuja MoU; 2 - Black Sea MoU; 3 - Caribbean MoU; 4 - Indian MoU;

5 - Mediterranean MoU; 6 - Paris MoU; 7 - Riyadh MoU;

8 - Tokyo MoU; 9 - Viña del Mar MoU.

Another major difference is a selection scheme for ships to be inspected.

Selection scheme of majority of MoUs can be analysed as two-element

system where parts thereof are percentage of annual total of inspections and

rules giving special attention (priority) in selecting ships for an inspection.

Paris MoU stands alone as it has much more advanced selection scheme. It

will be examined in the next subchapter. Tokyo MoU is a hybrid between

typically used selection scheme and Paris MoU using targeting system.

Hence, it also deserves an attention to look more thoroughly. The table

below shows percentage of annual total of inspections among MoUs.

The lowest percentage belongs to Indian and Riyadh MoUs with 10

percents. Tokyo MoU states take the commitment to inspect very high

percentage of calling vessels, namely 80 percents and Paris MoU gives

priority to calling ships through the analysis of ship risk profile based on

different factors. Hence, Paris MoU aims to inspect every calling vessel

with Priority I. Fifteen percents are prevailing among other MoUs and Viña

del Mar MoU aims to inspect a bit more, namely 20 percents. Riyadh,

Abuja, Mediterranean MoUs have no computerised targeting system and

Caribbean is under development.

MoUs Percentage

Abuja MoU 15

Black Sea MoU 15

Caribbean MoU 15

Indian MoU 10

Mediterranean MoU 15

Paris MoU 100% Priority I, Priority II to be used for completing

percentage of annual total of inspections

Riyadh MoU 10

Tokyo MoU 80

Viña del Mar MoU 20

Another major difference of Paris and Tokyo MoU from the rest is the use

of multi-faceted listing system showing performance of flag states and ROs,

which is utilised in the selection scheme. Black Sea MoU and Indian MoU

publish the watch lists, which are different from each other. Black Sea MoU

watch list is comprised of the ships, which have been detained for several

25

three or more times by the Black Sea MOU during the last 24 months.

Indian MoU puts those ships on the watch list, which according to section

3.8.2 of the Indian MOU, proceed to sea without complying with the

conditions agreed to by the authority of the port of inspection, or do not

proceed to the nominated repair port. Additionally, other organisations such

as classification societies, secretariats’ of other MOUs and flag states not

being members of the Indian MoU also provide alerts on various vessels

from time to time. It shows the willingness of Indian MoU to cooperate for

the benefit of the maritime community in general, which is, actually, in lack

among MoUs. Exclusive cardinal difference of Paris MoU from the rest is

the use of the right to refuse access to those ships, which were found

substandard for several times during specified period taking into

consideration performance of flag state of the ship as ultimate measure to

eliminate substandard ships from the Paris MoU waters.

Generally, all MoUs have a common structural architecture. It is comprised

of preamble, sections on general commitments, relevant instruments,

inspection procedures, rectification and detention, provision of information,

operational violations, training programmes and seminars, organization,

financial mechanism, amendments, administrative provisions and annexes

where relevant.

Analysing the previsions of MoUs together with comparison table of Annex

1 it is possible to derive several conclusions. Majority of MoUs uses typical

wording of provisions. Paris MoU is almost completely distinguished from

the rest of MoUs as it uses own wording and some conceptually different

provisions which, in general, can be characterised as much more stringent

and effective. It is possible to find some provisions of Tokyo MoU, which

were adopted from Paris MoU. However, in general, Tokyo MoU is

different from Paris MoU and rest of them. It is also possible to find some

common provision just between Tokyo and Indian MoU. There is a group of

MoUs, which are quite similar with each other, namely Black Sea, Abuja,

Mediterranean, Riyadh, Indian MoUs within which Abuja and

Mediterranean MoUs are almost identical. Caribbean MoU is quite similar

with this group. However it employs own wording in many cases and uses

not all typical provisions. Based on wording of provisions, Viña del Mar

MoU can be almost completely distinguished from the rest of MoU,

although same typical provision are used. Since Paris and Tokyo MoUs are

conceptually different and in the same time being the most effective, they

must be examined in detail further.

3.2.1 Paris MoU

One of the main distinguishing characteristics of Paris MoU is its inspection

and selection scheme. It is provided in the Annex 8 of Paris MoU. Based on

the ship risk profile scheme determines the scope, frequency and priority of

inspections. Overriding or unexpected factors might trigger an inspection in

between periodic inspections, which is referred to as an additional

inspection. All ships in the information system are assigned either as high,

standard or low risk based on generic and historic parameters of the ship

risk profile. Generic parameters include ship’s type, age; flag state

26

performance, RO performance and company performance. Historic

parameters include number of deficiencies recorded in each inspection and

detentions within previous 36 months.

High risk ships are those ships, which meet the criteria to a total value of 5

or more weighting points. Low risk ships are ships which meet all the

criteria of the low risk parameters and have had at least one inspection in the

previous 36 months. Low risk parameters mean ship’s flag state is to be

within white list and IMO audited, ship’s RO performance ought to be high

or RO recognized by one or more Paris MoU member states, ship’s

company performance must be measures as high, 5 or less deficiencies and

no detention within last 36 months. Standard risk ships are ships which are

neither high-risk ships nor low risk ships.

The black, grey and white list for flag state performance is established

annually taking account of the inspection and detention history over the

preceding three calendar years and is adopted by the Paris MoU Committee.

The performance of all ROs is measure in similar way and indicated as high,

medium, low and very low. The same gradation is used to measure company

performance through the analysis of the detention and deficiency history of

all ships in a company’s fleet whereas the company is the ISM company for

the ship. The formula for company performance consists of two elements,

the deficiency index and the detention index. The deficiency index is the

ratio of the total points of all deficiencies of all ships in a company’s fleet to

the number of inspections of all ships in the company’s fleet within the last

36 months. This ratio is compared with the average for all ships inspected in

the Paris MoU over the last 3 calendar years to determine whether the index

is average, above average or below average. Detention index is calculated in

the same manner. When counting deficiencies each ISM related deficiency

is weighted at 5 points. Other deficiencies are valued at 1 point.

The selection scheme for inspection has priority system. Priority one

includes ships with overriding factor, high risk ships not inspected in last 6

months, standard risk ships not inspected in last 12 months, ship not

inspected in last 36 months. Priority two includes high risk ships not

inspected in last 5 months, ship with unexpected factors, standard risk ships

not inspected in last 10 months, low risk ships not inspected in last 24

months.

The following overriding factors are considered sufficiently serious to

trigger an additional inspection at priority one:

ships reported by another member state excluding unexpected

factors;

ships involved in a collision, grounding or stranding on their way to

port;

ships accused of an alleged violation of the provisions on discharge

of harmful substances or effluents;

ships which have been manoeuvred in an erratic or unsafe manner

whereby routing measures, adopted by the IMO, or safe navigational

practices and procedures have not been followed;

ships which have been suspended or withdrawn from their class for

safety reasons after last PSC inspection;

ships which cannot be identified in the database.

27

Unexpected factors could indicate a serious threat to the safety of the ship

and the crew or to the environment but the need to undertake an additional

inspection is for the professional judgement of the authority. It includes,

inter alia, ships which did not comply with the reporting obligations,

previously detained ships (3 months after the detention) and ships reported

with problems concerning their cargo, in particular noxious or dangerous

cargo. Ships with unexpected factors which have not been inspected may be

reported to the information system and remain eligible for inspection in

subsequent ports as priority two.

Inspections are categorised as periodic or additional due to overriding or

unexpected factor and based on its scope as initial, more detailed and

expanded. Initial and more detailed inspects correspond to general practice

laid down in IMO resolution on PSC. Expanded inspection must be looked

closer. It includes 14 risk areas. They are documentation, structural

condition, weathertight condition, emergency systems, radio

communication, cargo operations including equipment, fire safety, alarms,

living and working conditions, navigation equipment, life saving appliances,

dangerous goods, propulsion and auxiliary machinery, pollution prevention.

The expanded inspection will take account of the human elements covered

by ILO, ISM and STCW and include operational controls as appropriate.

This selection scheme is designed to accurately concentrate on substandard

ships, while quality ships will be rewarded by undergoing less frequent

inspections. The overall priority is given to ships with high risk profile.

Paris MoU contains reporting obligations for arriving ships. A ship, which is

eligible for an expanded inspection and bound for a port or anchorage of a

Paris MoU member state, shall notify its arrival 72 hours in advance to the

authority or earlier if required by national provisions. Other ships shall

notify its arrival at least 24 hours in advance, or at the latest, at the time the

ship leaves the previous port, if the voyage time is less than 24 hours, or if

the port of call is not known or it is changed during the voyage, as soon as

this information is available.

Another peculiarity of Paris MoU which, in fact, distinguishes it from the

rest of MoUs, is banning ships being systematically found substandard.

Section four of Paris MoU provides for banning rules. In accordance with

section four, a ship should be refused access to ports and anchorages of

member states in few cases based on ship’s flag state performance and

number of detentions or prevention of operation orders. It is imposed refusal

of access on the ship, which flies the flag of a state appearing in the grey list

and has been detained in the course of the preceding 24 months or flies the

flag of a state appearing in the black list and has been detained during last

36 months. The ship also should be refused access when it has been issued

with a prevention of operation order under the system of mandatory surveys

for the safe operation of regular ro-ro ferry and highspeed passenger craft

services more than twice in the course of the preceding 24 months and

belongs to gray listed flag state, or in the course of the preceding 36 months

and belongs to black listed flag state.

The refusal of access order shall be lifted after a period of three months has

passed from the date of issue of the order and when a formal request is filed

supplemented by requited evidences that the ship is in conformity with

28

requirement of applicable instruments. If the ship is subject to a second

refusal of access, the period shall be 12 months. Any subsequent detention

in a port or anchorage shall result in the ship being refused access to any

port or anchorage. This third refusal of access order may be lifted after a

period of 24 months has passed from the issue of the order and only if:

the ship flies the flag of a state appeared in the white list;

the statutory and classification certificates of the ship are issued by

RO, which are recognized by one or more of the Paris MoU member

states;

the ship is managed by a company with a high performance;

application of formal request with required evidences of ship

compliance.

The last but not the least important distinguishing characteristic of Paris

MoU is that it is a regime with the regime inside. EU states which are party

to Paris MoU shall comply with EU legislation on PSC.52

In 1995 EU

enacted own legislation incorporating Paris MoU as there were no

consistency in applying the MoU correctly among EU states.53

The directive

integrates main provisions of Paris MoU and where necessary complements

in order to comprehensively implement Paris MoU by EU states and

accommodate specificity of EU policy on shipping safety and prevention of

marine pollution facilitated by EMSA. The main difference between

provisions of Paris MoU and the directive is that latter provisions are

mandatory for EU states and if they are found not in compliance with EU

directive, the proceeding against violating state may be initiated in European

Court of Justice that in fact happened with Italy in 1997 when it failed to

enact national legislation on PSC implementing the Directive 95/21/EC on

PSC.54

Due to its peculiarities, Paris MoU can be characterised as most rigorous as

well as the most effective in achieving aimed goal to eliminate substandard

ships from its waters. The PSC detention dynamics in annex 3 shows that

Paris MoU had the lowest detention rate with 3,61 in 2011. Since 1995, the

Paris MoU detention rate dropped in three times, which clearly indicates its

effectiveness.

3.2.2 Tokyo MoU

As it was indicated above, the main difference of Tokyo MoU from the rest

is its targeting system. Table below shows targeting factors and its value.55

The target factor of the calling ship is the sum of the Target Factor Values.

Element Target Factor Value

Ship Age 0-5 years: 0 point

6-10 years: 5 points

52

European Parliament and the Council Directive (EC) 2009/16 on port State control

[2009] OJ L131/57 53

Özçayir, supra note 1, 254 54

Ibid, 255 55

http://www.krs.co.kr/kor/dn/Pro/pdf/Target%20System.doc.pdf accessed 01.12.2012

http://www.krs.co.kr/kor/dn/Pro/pdf/Target%20System.doc.pdf

29

11-15 years: 10 points

16-20 years: 10 +1 point for

each year exceeding 15 years

>20 years: 15 +2 points for

each year exceeding 20 years

Ship type

4 points for ships with type codes

13, 30, 40, 55, 60, 61,70, 71 and of

15 years of age and over 0 points for

all others

Ship flag

(excess of average detention based

upon 3 year rolling average figure)

+1 for each percentage point in

excess (decimal number rounded up)

Deficiencies

0,6 points for each deficiency found

in last 4 initial inspections or follow-

up inspections with new deficiency

(decimal number rounded up)

Detentions

Depending on number of detections

during the last 4 initial inspections or

follow-up inspections with new

deficiencies:

1 detention – 15 points

2 detentions – 30 points



Classification Society Non IACS –10 points

Outstanding deficiencies – from last

3 inspections (a deficiency recorded

in the APCIS in the last initial

inspections or associated follow-up

ones and not marked as rectified

2 points for each outstanding

deficiency

Time since last initial inspections

6-12 months – 3 points

12-24 months – 6 points

Over 24 months or never inspected

in Tokyo MoU region (including

new ships) – 50 points

It depends on member state how to treat the target factor. However, the

guidelines are drawn according to which if the target factor exceeds a

hundred points, the ship should be given priority one. If target factor

between 41 and 100 it shall be priority two. Priority three is within range

from 11 to 40.

3.2.3 USCG PSC programme

United States has elaborated own unique PSC regime which is analysed here

apart in contrast to regional MoUs due to its singularity. The legal

framework of PSCP is constituted by federal legislation both codified in US

Code and separate acts and FCR. However, those legal provisions are just

an umbrella for PSCP organisation. The mechanism of PSCP is explained

30

by the USCG published directives (MSMs) and NVICs, which do not have

the status of law in contrast to regulation of PSC mechanism in EU.

PSCP is executed by USCG, which was created by combining the

Lifesaving Service with the Revenue Cutter Service on 28th

January 1915.56

It is military service and a branch of the armed forces of the United States.

The Coast Guard is a service in the Department of Homeland Security,

except when operating as a service in the Navy.57

The Secretary of the

Department in which USCG operates is authorized to confer Coast Guard

related duties and powers upon the Commandant.58

The Commandant is

specifically authorized to designate any officer as a “captain of the port” for

such ports or adjacent high seas or water over which the U.S. has

jurisdiction to facilitate execution of Coast Guard duties prescribed by

law.59

Legal foundation PSC is found in the relevant section envisaging also

principal of reciprocity for foreign vessels.60

It provides for the foreign

vessel of a country having inspection laws and standards similar to those of

the United States and that has an unexpired certificate of inspection issued

by proper authority of its respective country, is subject to an inspection to

ensure that the condition of the vessel is as stated in its current certificate of

inspection. A foreign country is considered to have inspection laws and

standards similar to those of the United States when it is a party to SOLAS

to which the United States Government is currently a party. A foreign

certificate of inspection may be accepted as evidence of lawful inspection

only when presented by a vessel of a country that has by its laws accorded

to vessels of the United States visiting that country the same privileges

accorded to vessels of that country visiting the United States.

United States is party to several major international regulatory conventions

such as SOLAS, MARPOL, TONNAGE, LOADLINE, STCW, COLREG,

AFL.61

It is odd that the section 3303 does not reflect the commitment to all

conventions. In general, it may be deduced that legal regulation PSC in

USA is rather fragmented. Although standards for foreign vessels calling

US port should be based on international conventions, there are national

requirement to be observed as well. For example, double hull requirements

imposed under the Oil Pollution Act of 1990 or navigation safety

regulations found in the part 164 of 33 CFR.

In order to understand PSCP further, MSMs must be analysed. MSM is the

primary policy and procedural statement for the marine safety programs of

USCG. MSM must be used in accordance with appropriate marine safety

laws and regulations. In any case of conflict between provisions of the

manual and any statue or regulation, the legal requirements shall be

observed.62

56

MSM, volume I, 2-5 57

14 USC, sec. 1 58

Ibid., sec. 631 59

Ibid., sec. 634 60

46 USC, sec. 3303 61

IMO Status of Conventions

<http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Copy%20of%2

0status-x.xls > accessed 22.11.2012 62

MSM, supra note 56, 1-2

http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Copy%20of%20status-x.xls

http://www.imo.org/About/Conventions/StatusOfConventions/Documents/Copy%20of%20status-x.xls

31

Volume I of MSM provides as general framework of USCG work and

blueprint definition of PSC in section 4.C.7 of chapter 4 on law

enforcement. Chapter 7 contains provisions on professional training and

qualification of USCG officers. Main provisions on PSC are found in

section D of volume II of MSM. Subsection C contains PSC related

definitions including clear grounds, control, deficiencies, detention,

substandard shop, which are in conformity with IMO guidelines on PSC

with slight modification to accommodate specificity of USCG work.

Peculiar definitions are boarding, contravention, intervention.

Boarding means attending a vessel to conduct an examination, cargo

monitor, cargo loading supervision, deficiency check, or other USCG

business which includes at sea boarding. The definition of boarding is much

wider than definition of inspection under IMO PSC IMO guidelines and

MoU. The definition of contravention has similar scope with deficiencies,

however it is wider, namely an act, procedure, or occurrence that is not in

accordance with a convention or other mandatory instrument.

Intervention implies a control action taken by a port state in order to bring a

foreign flag vessel into compliance with applicable international convention

standards when a ship’s flag state cannot or is not willing to exercise its

obligations under an international convention to which it is a party. This

may include requesting appropriate information, requiring the immediate or

future rectification of deficiencies, detaining the vessel, or allowing the

vessel to proceed to another port for repairs. An intervention is not

synonymous with a detention. As it is shown, it has much broader scope.

USCG PSC examinations consist of annual examination, reexamination or

deficiency follow-up examination. Any of these examinations may be

broadened in scope or depth into an expanded examination, if clear grounds

exist that lead a boarding team to believe that the condition of the ship or its

equipment does not correspond with the certificates or the ship does not

comply with applicable laws or conventions. Annual examination shall

normally consist of an examination of the vessel’s certificates, licenses and

documents, and a general examination of the entire vessel include

examining and testing specific equipment, and conducting operational

testing and emergency drills with the vessel’s crew.63

A re-examination is an examination to ensure that a vessel has remained in

compliance with appropriate U.S. laws or international conventions between

annual examinations. It shall normally consist of an examination of the

vessel’s certificates, licenses and documents, and a general examination

conducted by walking through the vessel. Follow-up examination is

performed to ensure previously identified deficiencies have been corrected.

It may be limited in scope to an examination of the specific items identified

as deficiencies during a previous boarding.64

USCG also exercises as a part of PSC cargo supervision. It is the process of

supervising explosives or radioactive materials transfers.65

In general, USCG PSCP has many similarities with procedures stipulated by

IMO guidelines and regional PSC MoU. However, it has unique features to

63

MSM, Volume II, D1-7 64

Ibid., D1-8 65

Ibid., D1-9

32

accommodate US concerns for security and peculiarity of USCG operation

due to its status as a part of Department of Homeland Security and US

Navy.

The foreign vessels bound for the United States should submit NOA to the

National Vessel Movement Centre.66

The rules are quite time stringent. If

the voyage lasts more than 96 hours, NOA must be submitted at least 96

hours before entering the port or place of destination if less than before

departure but at least 24 hours before entering the port or place of

destination. Information provided in NOA includes information on the

vessel, voyage, cargo, each member on board, each person on board in

addition to crew, ISM Code Notice, ISPS Code Notice.

PSCP employs a quite sophisticated targeting system. USCG screens the

vessels prior to arrival at the first US port of call, using three risk-based

tools to determine the threat a vessel poses to a US port. These risk-based

tools collectively referred to as the Compliance Verification Examination

Matrices that prioritizes vessel compliance examinations and security

boarding.67

There are three matrices. The first is High Interest Vessel Matrix

that is risk-based tool used to evaluate the security risk of a vessel entering

into port. The second screening tool is the ISPS/MTSA Security

Compliance Targeting Matrix evaluating risk factors applicable to a foreign-

flag vessel’s compliance with international and domestic security standards.

The third matrix evaluates risk factors applicable to a vessel’s compliance

with international safety and environmental standards. It is called the PSC

Safety and Environmental Protection Compliance Targeting Matrix. The use

of second and third matrices allows to identify those vessels posing the

greatest risk of being substandard.

The ISPS/MTSA Security Compliance Targeting Matrix uses several risk

factors. They are ship management, flag state; recognized security

organization, the individual vessel’s security compliance history and last

ports of call information. The matrix is used to target those vessels posing

the greatest risk of noncompliance with SOLAS Chapter XI-2, ISPS Code,

and the regulations issued under Maritime Transportation Security Act.

PSC Safety and Environmental Protection Compliance Targeting Matrix

uses similar risk factors. They are ship management, flag state, classification

society, compliance history, and vessel type. The risks associated with each

of these factors are evaluated using USCG examination data developed over

previous years.

NVIC 06-03 contains comprehensive instructions on reporting for PSCO in

the case of detention.

Subpart 1.03 of title 46 of FCR envisages the right of appeal. Section 1.03-

15 provides for that any person directly affected by a decision or action

taken by or on behalf of the USCG shall follow the procedures contained in

this section when requesting that the decision or action be reviewed, set

aside, or revised. According to set procedure when requesting that a

decision or action to be reconsidered or reviewed, such request must be

made within 30 days after the decision is rendered or the action is taken.

When making a formal appeal of a decision or action, it must be submitted

66

33 FCR 160 67

NVIC 06-03, Enclosure (1), p. 1

33

in writing and received by the authority to whom the appeal is required to be

made within 30 days after the decision or action being appealed, or within

30 days after the last administrative action required by this subpart. Upon

written request and for good cause, the 30 day time limit may be extended

by the authority to whom the appeal is required to be made. A formal appeal

must contain a description of the decision or action being appealed and the

appellant’s reason(s) why the decision or action should be set aside or

revised. When considering an appeal, the Commandant or a District

Commander may stay the effect of a decision or action being appealed

pending determination of the appeal. While a request for reconsideration or

review or a formal appeal is pending, the original decision or action remains

in effect, unless otherwise stayed. Failure to submit a formal appeal in

accordance with the procedures and time limits results in the decision or

action becoming final agency action. Any decision made by the

Commandant, or by the Deputy for Operations Policy and Capabilities, or

by an office chief pursuant to authority delegated by the Commandant is

final agency action on the appeal.

The initial appeal should be filed to the USCG officer in command where

the decision was made or action was taken.68

If the appeal is not satisfied,

the further formal appeal may be forwarded to the District Commander.69

In

the case if the appeal is further declined, it may be finally made to USCG

headquarters.70

It is shown that USCG PSC Programme is drastically different from other

regional PSC regimes based on MoUs. Therefore, it stands alone in the

classification. In the same time, it operates on the national level based on

US legislation and organisationally implemented by USCG through its PSC

programme. However, in order to analyse methodically how PSC operates

on the national level it is necessary to examine at least two other states

participating in different regional PSC MoUs.

3.3 Comparison of PSC in UK and Ukraine

It is chosen to compare how PSC operates in legal dimension in UK and

Ukraine due to their drastic difference. UK participates in Paris MoU and

Ukraine is a member of Black Sea MoU. They belong to different legal

systems and different implementation approaches are used in these courtiers.

However, MoU does not create international mandatory obligation for

participating state to implement it but in order to exercise PSC port state

must enact the legislation sanctioning and subsequently PSC. Those

legislation should be in conformity with provisions of MoU. Therefore,

implementation method is a relevant part of consideration.

UK is a common law country where dualistic approach is adopted for

implementation. Therefore, international legal provisions are implemented

when a national piece of legislation incorporating them is enacted. The

primary sources of English maritime law are statutes and case law. Part IV

68

46 FCR 1.03-20 69

Ibid., 1.03-25 70

Ibid., 1.03-15(h)

34

of Shipping Safety Act 1995 governs the question of shipping safety

including enabling provision for PSC. Section 95 provides for where a ship

(including foreign ship) which is in a port in the UK or at sea in UK waters,

appears to a relevant inspector to be a dangerously unsafe ship, the ship may

be detained. Subsection 3 stipulates further that the officer detaining the

ship shall serve on the master of the ship a detention notice, which shall

specify the matters, which make the ship a dangerously unsafe ship and

require the ship to comply with the terms of the notice until it is released by

a competent authority. Subsection four implements important provision of

many regulatory convention providing for PSC and IMO guidelines, namely

in the case of a foreign ship is detained, the officer detaining the ship shall

cause a copy of the detention notice to be sent as soon as practicable to the

nearest consular officer for the country to which the ship belongs.

The more detailed provisions on PSC are found in secondary legislation.71

Part one of the regulations is devoted to implementation of the Directive

2009/16/EC on PSC. Section four of the regulations impose a duty on the

Secretary of State to ensure in each calendar year that the UK has carried

out its share of the total number of inspections to be carried out annually

within the European Union and the Paris MOU region.

Section 4(3) in conjunction with sections five and six provides for notion

and types of inspection in accordance with Paris MoU and the Directive.

Other sections incorporate the respective provisions of Paris MoU and the

Directive on report of inspection to the master, professional profile of

inspectors, rectification and detention, effect of refusal of access notice,

power to permit prohibited ships to enter port, duty on pilots and port

authorities to report anomalies, duty on port authorities to report ship

arrivals and departures, etc.

Sections 14, 15 and 16 provides for appealing and compensation procedure.

Section 15 of the regulations specifies that any dispute in relation to

detention notice or refusal of access shall be referred to a single arbitrator

appointed by agreement between the parties for that dispute to be decided by

him. In order to initiate procedure, the respective notice shall be given to the

relevant inspector within 21 days from the service of the detention notice by

the master or shipowner. The giving of the notice shall not suspend the

operation of the detention or refusal of access notice unless, on the

application of the person requiring the reference, the arbitrator so decides.

Where the arbitrator decides that the facts of the case did not constitute a

valid basis for the inspector’s opinion, the arbitrator must cancel the

detention notice or refusal of access notice, or affirm it with such

modifications it may be appropriate.

According to section 16 if it is proved if there were not valid basis for

detention or refusal of access, the arbitrator must award owner of the ship

compensation in respect of any loss suffered in consequence of such

detention or refusal of access.

Subsection 6 of section 15 sets the qualification requirements for the

arbitrator as following:

71

Merchant Shipping (Port State Control) Regulations 2011

35

a person holding a certificate of competency as a master mariner or

as a marine engineer officer class 1, or a person holding a certificate

equivalent to any such certificate;

a naval architect;

a person with 7 year legal experience qualified for judicial

appointment or an advocate or solicitor with 7 years’ standing;

a person with special experience of shipping matters, of the fishing

industry, or of activities carried on in ports.

Section 18 of the regulations provides for PSC offenses. According to this

section where a ship enters a port or anchorage in breach of detention notice

or fails to proceed to the repair yard specified when permitted to leave port

or to fails to comply with the requirement that the deficiency be rectified

within 30 days, the owner and master are each guilty of an offence, and

liable on summary conviction to a fine not exceeding the statutory

maximum, or on conviction on indictment to imprisonment not exceeding

two years, or a fine, or both. Where a ship is eligible for an expanded

inspection fails to give notification for arrival or leave the port or anchorage

when the inspection is not completed, the owner and master are each guilty

of an offence and liable on summary conviction to a fine not exceeding level

3 on the standard scale. The section also envisages offences for pilots and

port authorities when failing to fulfil their duties with respect to PSC.

It can be concluded that UK legislation on PSC properly implements Paris

MoU and EU directive on PSC. Provisions are systematic and very

accurately and succinctly drafted. It again proves that UK is a state with one

of the best maritime legislation in the world reflecting its history and

concerns. Next jurisdiction in line to be examined is Ukraine.

Ukraine belongs to the civil law family. It is a monistic state with

supremacy of international law. According to article 9 of Constitution of

Ukraine: “International treaties that are in force, agreed to be binding by the

Verkhovna Rada of Ukraine [the Parliament of Ukraine, - inserted for the

purpose of clarity], are part of the national legislation of Ukraine.”72

The cardinal source of maritime law is MSCU, which was enacted in 1995.

According to the article 3 of the code, the state regulates merchant shipping

through central executive authority in the sphere of transport. Paragraph two

of the article envisages that central executive authority in the sphere of

transport in cooperation with other central executive authorities concerned

shall develop and approve regulations on merchant shipping; instructions,

rules for carriage of cargos, passengers, post and luggage; rules for

intermodal transportation with sea leg, which are mandatory for all legal

entities and physical persons. These functions are assigned on the Ministry

of Infrastructure of Ukraine in accordance with section 1 of the Regulation

on the Ministry of Infrastructure of Ukraine.73

Cabinet of Ministries of Ukraine (the government of Ukraine) imposes the

duties arising out of participation in the Black Sea MoU on the Ministry of

72

Constitution of Ukraine of 28.06.1996 № 254к/96-ВР

˂http://www.rada.gov.ua/const/conengl.htm˃ accessed 03 December 2012 73

Regulation on the Ministry of Infrastructure of Ukraine sanctioned by the Order of

President of Ukraine of 12 May of 2011 № 581/2011

<http://www.mtu.gov.ua/repository/1/file/polozhennia.doc> accessed 03.12.2012

http://www.rada.gov.ua/const/conengl.htm

http://www.mtu.gov.ua/repository/1/file/polozhennia.doc

36

Infrastructure of Ukraine and UMRI operating within the ministry.74

This

provision provides for organisational implementation of commitments of

Ukraine arising out of the Black Sea MoU. Although the Black Sea MoU

has no mandatory force for participating states, it is embedded among those

international organisation in the list of according to which Ukraine accepted

internationally compulsory obligations. The wording of the resolution is

quite obscure. It is rather technical emanating from organisational nature of

the purpose designed by the legislators, therefore it is not clear which legal

status is given to Black Sea MoU in Ukrainian legislation.

Further exploring organisational component of implementation of respective

commitments of Ukraine on PSC, the authority of UMRI must be examined.

According to subsection 38 of section 3 of the Regulation on UMRI75

, it

exercises PSC for the compliance of the vessels calling ports of Ukraine,

territorial sea, internal waters without dependence on flag, standards of

merchant shipping safety and prevention of marine pollution from ships.

The main portion of provisions on PSC are also accommodated in secondary

legislation,76

blueprint thereof is paragraph two of the article 90 of MSCU

which stipulates that the rules for the control of ships with purpose to assure

shipping safety shall be adopted by central executive authority in the sphere

of transport with the concurrence of central executive authority in the sphere

of fishery.

Section 1.1. of the rules stipulated that these regulations are designed to

establish an organisation of state control in the ports for observance by

ships of requirement of international conventions, MSCU, act of Ukraine on

shipping safety and prevention of pollution of environment. The rules apply

to seagoing and river ships in spite of flag and form of ownership, which are

present in Ukrainian ports and internal waterways of Ukraine. Section 1.3

provides for that the rules are designed in conformity with, inter alia,

SOLAS, MARPOL, STCW, LOADLINE, TONNAGE, ILO 147, COLREG,

IMO resolution A. А.787(19) with amendments by А.882(21), IMO

resolution А.847(20), Black Sea MoU.

According to the rules, all ship are subject at least two types of control.

Section 1.5 provides for that all ships are subject to the control by inspectors

of ISPSU and selective control by UMRI. The inspectors of UMRI exercise

both flag state control on Ukrainian ships and PSC on foreign ships. The

control of foreign ships by ISPSU being the first type of control is national

device envisaged by the article 90 of MSCU. According to paragraph one of

this article, each ship before proceeding to sea are subject to the control

which is exercised by ISPSU for the purpose to check ship documents,

74

Resolution of Cabinet of the Ministries of Ukraine of 13.09.2002 № 1371 on the

organisation of participation of central executive authorities in the activity of international

organisations, member thereof is Ukraine <http://zakon1.rada.gov.ua/laws/show/1371-

2002-%D0%BF?test=4/UMfPEGznhhDY0.ZiHFFQmFHI47Us80msh8Ie6> accessed

03.12.2012 75

Regulation on the State Inspection of Ukraine on safety at maritime and river transport

sanctioned by the Order of President of Ukraine of 08 April of 2011 № 447/2011

<http://sismit.gov.ua/polozhennya-pro-ukrmorrichinspektsiyu.aspx> accessed 03.12.2012 76

Rules for the control of ships with purpose to assure shipping safety approved by Order

of Ministry of Transport of Ukraine of 17 July 2003 № 545

<http://zakon2.rada.gov.ua/laws/show/z0353-04> accessed 03.12.2012

http://zakon1.rada.gov.ua/laws/show/1371-2002-%D0%BF?test=4/UMfPEGznhhDY0.ZiHFFQmFHI47Us80msh8Ie6

http://zakon1.rada.gov.ua/laws/show/1371-2002-%D0%BF?test=4/UMfPEGznhhDY0.ZiHFFQmFHI47Us80msh8Ie6

http://sismit.gov.ua/polozhennya-pro-ukrmorrichinspektsiyu.aspx

http://zakon2.rada.gov.ua/laws/show/z0353-04

37

establishment of correspondence of main characteristics of the ship to ship

documents as well as to check observance of manning requirements. In the

case of absence of ship documents or presence of sufficient grounds to

suggest that the ship is in conformity with requirement on shipping safety,

ISPSU may carry out inspection. With purpose to check and rectify

deficiencies that prevent giving the permission to leave the port, ISPSU may

conduct follow up inspection. Furthermore, according to the article 91 of

MSCU, any foreign ship may be detained by the harbour master for much

more expanded list of ground in contrast to international regime envisage by

regulatory maritime conventions. The article provides for before leaving the

port each ship is obliged to obtain the permission for that from the harbour

master. The harbour master shall refuse to give the permission in case of:

a) unseaworthiness of the ship, violating requirements on her loading,

supply, manning and presence of other deficiencies that pose a

danger for navigational safety, health of persons onboard or

environment;

b) infringement of ship documents requirements;

c) default of payment of imposed dues, fines or other payments;

d) decision of state authorities duly authorised by law (customs,

sanitary and quarantine service, fishing inspection, central executive

authority for protection of environment and immigration and border

control service)

Before leaving the port each ship is obliged to obtain the permission for that

from the harbour master. The harbour master shall refuse to give the

permission in case of:

a) unseaworthiness of the ship, violating requirements on her loading,

supply, manning and presence of other deficiencies that pose a

danger for navigational safety, health of persons onboard or

environment;

b) infringement of ship documents requirements;

c) default of payment of imposed dues, fines or other payments;

d) decision of state authorities duly authorised by law (customs,

sanitary and quarantine service, fishing inspection, central executive

authority for protection of environment and immigration and border

control service)

The harbour master may detain a ship on the grounds indicated in paragraph

two of the article until discovered deficiencies according to conclusion of

ISPSU or until payment of owing dues, fines or other payments.

Section 2.1 of the rules elaborates provisions on port surveillance control

exercised by ISPSU, which is headed by harbour master. Port surveillance

control covers examination of ship document, ship’s condition of hull,

mechanisms, installations, appliances, observance of operational

requirements on shipping safety and prevention of pollution from ship by

crew, crew competency in personal survival, fire safety and fire fighting as

well as personal safety and civil duties.

Section 2.1.3 stipulated that in order to ascertain seaworthiness and

readiness of a ship to proceed at sea , inspector of ISPSU obliged to check:

number of crew in accordance with crew list and minimum safe

manning certificate;

38

ship’s condition of life-saving appliances and crew knowledge of

procedures on ship alarms;

the ship is furnished and provided with alarm and fire fighting means

and all types of ship provision in accordance with current norms;

the ship is furnished with navigational equipment and appliances

presence onboard of shipboard damage control manuals and

publications for intended voyage corrected according sailing date;

compliance of ship’s loading (stowage, securing and separation of

cargo) with ship and normative document concerning safe carriage

of cargoes;

presence and accuracy of conclusion by shippers, carriers,

consignees of the contract of compulsory insurance of liability of

subject of sea carriage of dangerous cargoes in the waters under

jurisdiction of Ukraine in the case of occurrence of negative

consequences during carriage of dangerous cargoes.

calculation of stability and if it is necessary according to ship’s type,

calculation of general strength for cargo operations and intended

voyage;

securing of deck, heavy lift and large scale cargo in accordance with

instructions on securing general cargo on seagoing ships;

correspondence of number of passengers to passenger ship safety

certificate and quantity of life-saving appliances onboard;

availability and observance of established order of radio

communication between the ship and shipowner, presence and good

condition of distress means of communication.

Port surveillance control is a device, which is inherited by Ukraine and other

post Soviet Union countries like Russian Federation which also has similar

provisions (namely articles 79 and 80) in its Merchant Shipping Code which

are derived from the article 74 of USSR Merchant Shipping Code enacted in

1968. There was limited access of foreign ships to USSR waters and strict

connections of Soviet ships with the state. Therefore, port surveillance

control was effective mean to ascertain shipping safety and prevention of

marine pollution from ships. However, nowadays, it is rather remnant of its

times as it does not corresponds to the needs of contemporary reality where

there are more calling foreign ships to Ukrainian ports as the ships under

Ukrainian flag. It is not unjustified burden to force foreign ships to comply

with to control regimes especially taking into consideration that port

surveillance control is devised with view on not only international

conventions but national legislation and normative document as well which

are, definitely, alien to foreign ships. Another problem is that port

surveillance control has overlapping areas with PSC. Therefore, foreign

ships may be double-checked with same scope. The problem is partially

solved by ISPSU inspectors by simply being reluctant and even sometimes

negligent to fulfilment of their duties thoroughly. It is not an appropriate

approach to be employed by a state. There must be some changes introduced

in primary legislation of Ukraine, especially taking into account that there is

not any primary framework implementation legislation with respect to

shipping safety and prevention of marine pollution, instead of scattered

pieces of regulations in subsidiary legislation, contemplated by international

39

maritime conventions in contrast to UK legislation, namely Merchant

Shipping Act 1995. With inception of MIMSAS, Ukraine will be forced to

make its legislation in conformity with international conventions. However,

it would be much better for state’s prestige and credibility to do it voluntary

without being internationally shamed and penalised once more time.

Section 2.2 of the rules contains provisions on PSC. According to section

2.2.1., foreign ships while being present in Ukrainian ports are subject to

PSC, which is exercised by PSCI. Organisation of the operation of PSCI is

carried out by UMRI.

PSCI carries out an inspection of ships in following cases:

on a selective basis, taking into consideration that annual overall

quantity of inspections shall cover not less than 15 percent of general

quantity of foreign merchant ships visiting ports of Ukraine;

on the basis of the information of PSCI on necessity to conduct more

detailed inspection.

upon receiving information from foreign PSC Inspectorate about

substandard ship or ship with deficiencies, discovered by PSC

Inspectorate in the previous port, which were not rectified,

proceeding to Ukrainian port;

upon receiving information from crew members or other persons

about lack of compliance with requirement of international

conventions, pollution of environment from ship or infringement of

conditions of carriage of cargos or passengers etc.

In accordance with section 2.2.3. inspection shall be carried out in

accordance with recommendations of the Committee of Black Sea MoU

based on IMO resolution A.787(19) with amendments adopted by

A.882(21). UMRI shall be responsible for reporting the respective

information on the exercise of PSC to IMO and Black Sea MoU bodies.

Section 2.2.4 envisages that inspection of the ship shall be conducted in the

presence of the master and chief engineer or persons acting for them or

persons designated by the master or chief engineer in order not to interfere

with normal work of the ship or crew.

On completion of an inspection PSCI composes report in accordance with

form A or form B in case of detention. The forms are in correspondence

with the section E of Black Sea PSC Manual. While completing a report in

the from B it is necessary to indicate name, number of rule, paragraph,

subparagraph of the instrument, requirements thereof were violated.

Evident deficiencies, listed in the report in the form B, with respect to ship’s

hull, her mechanisms, installations and appliances shall be photographed.

Film shall be kept in the files and photographs upon request shall be

forwarded to governmental bodies of Ukraine concerned or flag state.

Costs related to revisiting the ship by PSC inspector with a purpose to check

whether the measures have been taken to rectify the deficiencies causing a

detention of the ship shall be covered by the shipowner.

Section 2.2.9 sets if the decision to detain a ship is taken, reports must be

forwarded to the harbour master, UMRI and the flag state administration of

a ship.

Section 2.2.10 provides for the actions of harbour master shall be aimed that

the permission to leave the port for a ship shall be given after rectification of

40

all deficiencies discovered by PSCI, which are clearly hazardous to shipping

safety, and protection of environment. If deficiencies causing the detention

of the ship cannot be rectified in the port of inspection, the ship may be

allowed to proceed to the nearest repair yard or another port chosen by the

master of the ship subject to observance of coordinated with the harbour

master, UMRI and flag state administration.

To give a permission to leave the port in accordance with section 2.2.9, the

harbour master shall receive the consent of the administration of shipping

yard where the ship proceeds for a repair and ascertain that necessary

measures are taken to ensure the safe passage.

According to section 2.2.14, if the inspection revealed the information about

discharge of noxious substances by the ship in the ports, at the remote from

the coast terminal or on the territorial sea of Ukraine, UMRI shall inform

the competent authorities of Ministry of Ecology and natural resources of

Ukraine for investigation and prosecution of perpetrators in accordance with

current legislation.

There is no provision with respect to appeal procedure. The section 3 of the

rules only reiterate wording of Black Sea MoU with respect to undue delay

with few more general directions for PSCI. It is stated on the website of

Black Sea MoU that “[t]he Master of the vessel, owner or operator has the

right to appeal against a detention decision. Evaluation will be made by

Authority immediately after reception of an appeal note.”77

However, it does

not refer to any legal document, which would stipulate the appeal procedure.

In the case of legal vacuum, there are clear grounds for violation of ship

owners’ rights. There might be UMRI working document providing with

framework on appeal procedure, as it was a practice of Ukrainian Shipping

Safety Inspectorate that is a predecessor of UMRI. However, it is not

published and it is not registered by the Ministry of Justice of Ukraine that a

requirement for all regulations issued by state authorities in Ukraine.

Therefore, it has a power of internal instruction for the use of UMRI

personnel.

There is a general procedure in the case of disputes with involvement of

state authorities under the Code of Administrative Justice. According to the

paragraph one of the article 6 of the code, each person has a right to bring an

action before the administrative court in accordance with procedure

stipulated by the code if it is considered that the person’s rights, liberties or

interests are violated by action or omission to act by a subject of state

powers. According to paragraph 6 of the article, foreigners and persons

without citizenship and foreign legal entities enjoy the same right of judicial

protection as citizens and legal entities of Ukraine. The article 99 of the

code sets 6 months limitation of action from the moment the person got

aware or should get aware of violation of his or her rights. The

administrative procedure envisages the right to appeal to the court of appeal

and further to the court of cassation instance.

According to the article 122 administrative case must be tried and

adjudicated within reasonable period but not longer that on month from the

77

National arrangements on PSC, p. 14

<http://www.bsmou.org/files.php?file=PDF/NationalArrangements5.pdf> accessed

07.12.12

http://www.bsmou.org/files.php?file=PDF/NationalArrangements5.pdf

41

day of commencing proceeding. This procedure is general and does take

into account specific character of shipping where every day of delay for a

ship causes tremendous expenses. However, at least this procedure gives

opportunity to seek a legal remedy for undue detention or delay. It would be

more preferable to have in place special procedure for appeal of detention

cases, which would take in to consideration peculiarities of this type of

cases as it is in UK. It would benefit both parties to disputes as shipowner

enjoying professional and prompt treatment assuring justice in sophisticated

entanglements of shipping and state authorities as if they are found liable for

undue detention, the compensation to be paid for expenses incurred will

depend on the time that is necessary for adjudication of the case.

42

4 Legal implications of PSC detention

4.1 Undue detention

As it was shown in subchapter 3.1, all regional MoUs contain provision

with respect to undue delay in line with IMO PSC guidelines.78

However,

MoUs as well as IMO resolutions on PSC have only recommendatory nature

and cannot be invoked in the legal dispute as applicable law by a shipowner.

The aim of respective instruments is to provide global and regional

organisational framework on PSC among port states in order to harmonise

the state practice of carrying out PSC. They do not create any legal

obligations or rights for states or ship owners under jurisdiction of port state

seeking to protect themselves from undue detention. Legal foundation of

PSC is mainly found in international maritime conventions as explained in

subchapter 2.1. Majority of the conventions contain the provision, which

addresses the issue of undue detention. The article 13 of AFS, article of 7

MARPOL, regulation 19(f) of chapter I of SOLAS and article X(4) of

STCW stipulate uniformly that:

All possible efforts shall be made to avoid a ship being unduly detained or

delayed [under the provision of the convention].

When a ship is unduly detained or delayed [under the provision of the

convention], it shall be entitled to compensation for any loss or damage

suffered.

However, it shall be underlined that undue detention provision does not

solve the problem comprehensively because for those states with dualistic

approach of implementation there must be a national legislation

incorporating this provision to be operable in the realm of domestic law.

Even though undue detention provision is, obviously, self-implementing, as

its wording does not require any further steps for its implementation, it is

still possible for the court in the jurisdiction with monistic approach to

refuse to apply it. Obstacle to applying undue detention provision may pose

as whole convention is not self-implementing or more narrowly the whole

provision providing for PSC, within which undue detention provision is

found in some conventions, is not self-implementing. Therefore, it may be

decided that undue detention provision shall not be separately applicable.

Hence, the best way to give effect to this provision is to incorporate it in

national legislation dealing with PSC.

Another implication of this provision may be seen from purely international

prospective. Any flag state may bring a case against a port state before ICJ

on behalf of its shipowner, which suffered a loss from undue detention,

subject to possibility to establish jurisdiction of ICJ. Even if a convention,

under which a detention was based, does not provide for undue detention

78

See p. 19

43

provision such as LOADLINE, it is still possible for flag state to argue for

applicability of this principle of law, as there are grounds for consideration

of undue detention provisions of above-mentioned conventions to recognise

them as a part of international customary law. Particular practice of the

states must be seen through the prism of duration, consistency, repetition,

generality and opinio juris in order to establish an international custom.79

In

the Asylum case it was stated by ICJ that continuity and repetition of

international custom shall be: “in accordance with a constant and uniform

usage practised by the States in question”.80

The comparison of wording of

the relevant conventions shows its clear uniformity as minimum as well as

the fact, that majority of states is a party to those conventions, is proper

indicator of generality. Opinio juris is not an arguable question as the

practice is evidenced by international conventions and the condition of

duration is most likely to be satisfied. However, to say that international

custom with respect to undue detention exists, it requires further

investigation of the issue, which is far beyond the scope of this thesis.

There is limited number of cases involving the issue of undue detention. The

Lantau Peak case is one of reported cases from Canadian jurisdiction. It was

finally adjudicated by Federal Court of Appeal in 2005 by overturning the

trial court decision.81

At trial level, the plaintiffs, two Malaysian companies

one of which was the owner of detained vessel Lantau Peak, brought an

action against Canadian government and two Transport Canada (Canadian

authority responsible for PSC) steamship inspectors in tort for negligence in

the Federal Court.82

The key facts of the case are the following. The ship

arrived in Vancouver on April 5, 1997 to load coal for a return voyage to

Japan. En route from Kawasaki to Vancouver, the crew discovered eight

detached frames of vessel’s hull and upon arrival five more frames had

become detached. On the day of arrival two steamship inspectors boarded

the vessel and performed PSC inspection as a result of which the vessel was

detained. Consequently, it was taken off-hire the same day. Majority of

detainable deficiencies were due to corrosion of the hull as stated in the PSC

report. The Detention Order pronounced that it should not be lifted until the

structural deficiencies were repaired and until the adequacy of the repairs

had been verified by port state authorities. PSC inspectors required that all

frames that were wasted beyond 17% of their original thickness on

construction had to be renewed. The shipowner agreed to repair all detached

frames but disputed necessity of replacement of those frames with wastage

beyond 17% as according to the ClassNK (the ship’s classification society)

rules the rest of frames were within allowed limits of wastage. The PSC

Detention Order was appealed to the Chairman of the Board of Transport

Canada.

79

Shaw, supra note 2, 75-76 80

Asylum Case (Colombia v. Peru) ICJ Rep 17, p. 284 81

Her Majesty the Queen in Right of Canada v. Budisukma Puncka Sendirian Berhad

[2005] FCA 267 <http://decisions.fca-caf.gc.ca/en/2005/2005fca267/2005fca267.html>

accessed 10 December 2012 82

Budisukma Puncka Sendirian Berhad v. Her Majesty the Queen in Right of Canada

[2004] FC 501 <http://decisions.fct-cf.gc.ca/en/2004/2004fc501/2004fc501.html> accessed

10 December 2012

http://decisions.fca-caf.gc.ca/en/2005/2005fca267/2005fca267.html

http://decisions.fct-cf.gc.ca/en/2004/2004fc501/2004fc501.html

44

The ship was not released from detention until 13th

of August. During this

period, there was extensive communication among Transport Canada, the

shipowner of Lantau Peak, ClassNK and Malaysian Ministry of Transport

as a flag state. It was mainly concentrated on two issues: scope of repairs to

be done in general and particularly the amount of repairs to be done in

Vancouver before the ship might sail in ballast to China where the

remainder of works should be done as it was much cheaper for the

shipowner as argued by him. Throughout the detention, the shipowner,

ClassNK and Malasian government made representations to Transport

Canada that Lantau Peak was seaworthy and limits of corrosion prescribed

by the Transport Canada was unnecessary more stringent than that imposed

by class. The possibility to tow the vessel to repair yard in China was also

considered. However, the proposed condition, under which she may be

towed, was not satisfactory for the shipowner. Finally, the appeal decision

was made by the Chairman on the 18th

of July according to which the

frames with web wastage of 33% was to be renewed prior to departure from

Vancouver and the rest frames with wastage of 25% to be repaired upon

arrival in China. After one year and a half the shipowner brought an action

against Transport Canada for recovery of expenses incurred by unnecessary

repair expenses on the view of the shipowner and the loss of hire resulting

from the considerable period of detention.

What was the applicable law, whether steamship inspectors owed duty of

care to the shipowner, whether classification society rules on wastage limits

were to be accepted by steamship inspectors, and whether they were

negligent in conduction of the inspection were the key issues before the trial

judge to consider.

First, the judge rejected the defendants’ argument that detention was made

pursuant to the provisions of the Canada Shipping Act 1985, in particular

section 310 which read as:

Right of inspector to board ships

(1) A steamship inspector, in the performance of his duties, may go on board

any ship at all reasonable times and inspect the ship, or any of the machinery

or equipment thereof, or any certificate of a master, mate or engineer, and if

he considers the ship unsafe, or, if a passenger ship, unfit to carry passengers,

or the machinery or equipment defective in any way so as to expose persons

on board to serious danger, he shall detain that ship.

Right of inspector to detain ship

(2) A steamship inspector may detain any ship in respect of which any of the

provisions of this Act have not been complied with, if, in his opinion,

detention is warranted in the circumstances.83

It was found instead that detention was made under authority of SOLAS and

Tokyo MoU:

As in the present case, if the reasons for a detention are pursuant to the non-

binding provisions of SOLAS through voluntary recognition of international

convention obligations, why can’t the detention itself be on the basis of the

same recognition? I can see no reason, except for the argument that a

hypothetical ship owner might not agree and argue that there is no legal

83

Ibid., para. 74

45

authority to detain. The counter to this argument is the cooperation expected

under the MOU. In such a case, and indeed in the present case, it is possible

to view the MOU as the “enforcement” mechanism. While the preamble to

the MOU specifically states that it “is not a legally binding document and is

not intended to impose any legal obligation on any of the Authorities”,

nevertheless, it has proved to be an effective enforcement tool.84

Second, the court established that PSC inspectors owe duty of care to the

shipowner by asserting that:

In my opinion, by becoming an Authority to the MOU, Canada has agreed to

respect this standard of care [namely undue detention provision in the Tokyo

MoU – added for clarity]. However, the MOU is careful to state that the

MOU “is not a legally binding document and is not intended to impose any

legal obligation on any of the Authorities”; this means that an Authority

cannot be sued directly under the MOU for breach of an agreement to respect

a standard of care. Indeed, as stated, the Plaintiffs make it clear that they are

not attempting to do so in bringing this action. Essentially, by bringing this

action the point being made is that the proviso in the MOU does not mean

that an Authority is unaccountable for its actions in detaining a ship under the

MOU; the Authority and its servants are still liable for negligent conduct as a

matter of maritime common law.85

It is rather surprising that the accent was given to the prevision of MoU than

the respective provision of regulation 19(f) Chapter I of SOLAS.

Unfortunately, this statement was not elaborated and therefore, it is no clear

how it was deduced that it was “a matter of maritime common law”. Instead,

the reasoning was based on general tort law, namely neighbour principle

enunciated in Donoghue v. Stevenson case.86

The answer on left questions was well represented by the following two

paragraphs:

Because of the above analysis, I find that a reasonable and prudent Port State

Control inspector would not have imposed a 17% wastage standard; in my

opinion, its imposition constitutes a breach of the duty of care owed to the

Plaintiffs, and, as such, constitutes negligent conduct on the part of Inspector

Warna.

A point should be made on the issue of verification of grounds for detention.

As mentioned above, the verification would naturally come from evidence

that would be expected and accepted in the shipping industry, including the

Authorities to the MOU. In my opinion, on the evidence I have heard in the

trial, the only verification that exists as a stable part of Port State Control

inspection is that which comes from meeting the standards of a particular

ships’ Classification Society. In my opinion, it is not reasonable to dismiss

this verification out of hand. This is exactly what was done in the present

case.87

It shall be added that it was found as well that that breach of duty of care

owed to the shipowner was also contributed by failure of inspectors to carry

out properly more detailed inspection with engagement of professional

84

Ibid., para. 87 85

Ibid., para. 107 86

Donoghue v. Stevenson [1932] A.C. 562 87

Lantau Peack case, supra note 82, paras. 169-170

46

naval architects for their expertise on the overall state of the hull and failure

of Chairman of the Board of Transport Canada to render appeal decision

more expeditiously. Hence, the trial judge awarded damages to be paid to

the shipowner.

However, Federal Court of Appeal due to number of errors reversed the

decision, notably by an application of the wrong legal regime to the facts of

the case. The appellate court concluded that the authority under which

inspection was carried out and detention was made, was the section 310 of

the Canada Shipping Act 1985. Furthermore, it was stated that:

Canada became a contracting party and acceded to SOLAS on May 8, 1978.

SOLAS specifies minimum standards for the construction, equipment and

operation of merchant ships and prescribes various certificates that ships

must carry in order to demonstrate that they have met these standards. States

that have ratified SOLAS implement the treaty by incorporating its

requirements into domestic legislation. In Canada, this has been done under

the Act as well as by means of regulations enacted pursuant to it. Therefore,

while it may be correct to say that Canada has not implemented SOLAS in its

entirety, it has incorporated much of the treaty into domestic law through the

Act.88

and

As noted above, the Act is the core piece of domestic legislation affecting

navigation and shipping. It is through this legislation that Canada’s

participation in international instruments is implemented. In the same vein, it

is through the regulatory powers of the Act that Canada carries out its

undertakings under the MOU relating to inspections... The Act is also, as we

shall see, the source of the authority under which the decisions under review

were made in this case.89

The Court of Appeal criticised that the shipowner had not appealed the

decision of the Chairman of the Board of Transport Canada to the Minister

as second level of appeal stipulated by the section 307(3) of Canada

Shipping Act 1985.

The appellate court concluded that inspector should be liable only if the

decision for detention were unreasonable. It was found that the vessel was

unseaworthy and the decision was made within inspectors’ discretion. The

rule, employed by the steamship inspector while taking decision on the

permissible limits of corrosion, was endorsed by the appellate court. It states

that “[t]he more corrosion is widespread, the more the accepted percentage

of tolerance of corrosion goes down, especially if a large number of

longitudinal frames are wasted on the ship.”90

Furthermore, “decision as to

the extent to which repairs are necessary before going back to sea involves a

certain degree of complexity, the authority and responsibility for the taking

of such a decision rest with the Canadian Steamship Inspection Service, not

with a Class NK surveyor.”91

Therefore, it was ruled that the plaintiff’s action should be dismissed.

88

Lantau Peack case, supra note 81, para. 23 89

Ibid., para. 26 90

Ibid., para. 95 91

Ibid., para. 104

47

4.2 Effect of PSC detention on the contracts of affreightment and marine insurance

The PSC detention may have serious impact on the contracts of

affreightment and marine insurance. In certain circumstances, the fact of

detention can serve as prima facie evidence for the breach of the contract by

the shipowner. This subchapter aims to give succinct answers on two

primary questions:

what is the difference and correlation between statutory and private

law seaworthiness;

in what way the detention has impact on the warranty of

seaworthiness in the contract of affreightment and marine insurance.

First, it is important to investigate how private law contractual obligation of

shipowner to ascertain that the ship under his control is seaworthy relates to

public law obligation to operate a ship in safe and environmentally

nonhazardous way and if there is an overlap between these two concepts,

and what might be implications arising out of PSC detention. Before diving

into consideration in detail of these two different understandings of

seaworthiness in private and public law, it must be underlined that in first

case it will lead to the breach of the contract and in a latter case will entail

violation of statutory regulations. In order to identify distinctive features of

them, some similarities should be found. Going back to the origin of the

doctrine of seaworthiness it can be seen that underlying reason to justify its

existence is a concern for protection of different interests exposed to a

marine adventure from possible threats arising out of such marine

adventure.92

From the outset, provisions with respect to seaworthiness

appeared in the contract of carriage of goods by sea as just emphasis on

importance for merchant to receive evidences that a ship is well prepared for

the voyage. However, gradually it evolved into mandatory rule of law with

its acme of acknowledgement by Marine Insurance Act 1906 in the modern

time.93

Regulatory notion of seaworthiness is also derived from a concern

but of different nature, namely about safety of life at sea and protection of

marine environment, which was triggered by major ship disasters beginning

from Titanic after which, as response to the outcry of western world,

SOLAS was adopted in 1914.94

The notion of maritime safety consisting of ship safety (mainly construction

and equipment), navigational safety, cargo safety, personal and occupational

safety is at the heart of statutory seaworthiness. It also embraces safety

management, ship operation and manning standards.

92

Baris Soyer, Warranties in Marine Insurance (Cavendish Publishing Limited, London

2001) 56 93

Robert Merkin, Marine Insurance Legislation (3d edition LLP, London 2005) 45 94

Özçayir, supra note 1, p. 74

48

In contrast to statutory seaworthiness, the concept of private law

seaworthiness is somewhat different. It is easier to discern their difference

through the prism of liability for the violation of public maritime safety

regulation and breach of private law maritime safety warranty. Violation of

public maritime safety regulation triggers administrative, regulatory,

criminal sanctions whereas breach of private law maritime safety warranty

may lead to the damages or repudiation of the contract. In general, it can be

said that implied warranty of seaworthiness is broader term whereas

statutory seaworthiness is built-in. If a vessel has detainable deficiencies it

is no fit for the intended voyage that it is a standard in private maritime law.

However, fitness for intended voyage goes beyond what it is required by

public law. For example, it stipulates that the vessel should be enough

bunkered for the intended voyage or holds to be prepared for the carriage of

the particular cargo.

The substantial difference lying between these two concepts is a standard,

which is used to define a seaworthiness of a ship. In private law the test,

employed to determine whether a ship is seaworthy, was adopted by the

judges from early edition of Carver on Carriage by Sea.95

Approved

passage states that:

The ship must have that degree of fitness which an ordinary careful and

prudent owner would require his vessel to have at the commencement of her

voyage having regard to all the probable circumstances of it. To that extent

the shipowner… undertakes absolutely that she is fit, and ignorance is no

excuse. If the defect existed, the question to be put is, would a prudent owner

have required that it should be made good before sending his ship to sea had

he known of it? If he would, the ship was not seaworthy…96

In contrast to the private law definition of seaworthiness, the public law

notion of seaworthiness may be defined as full or in exceptional cases

substantial compliance with relevant regulatory conventions by a ship.

Although regulatory maritime law does not have the clear definition of

statutory seaworthiness, it has been derived from the definition of

unseaworthy ship. The definition of unseaworthy ship may be construed

from two correlated elements of PSC provision of relevant conventions.

With combination of definition of clear grounds and those ship to be

detained by PSCO, the unseaworthy ship may defined as a substantially

substandard ship posing a threat to ship, persons on board or marine

environment.

Substance of the public law standard of seaworthiness is composed of those

precise technical, legal, administrative and managerial requirements of

regulatory conventions vis-à-vis a ship whereas private law standard of

seaworthiness is envisaged in very general way based on what “ordinary

careful and prudent owner would require his vessel to have”. It is beyond

doubt that ordinary careful and prudent owner would require his vessel to

comply with those requirements of regulatory conventions but this rule

95

McFadden v Blue Star Line [1905] 1 KB 706; FC Bradley & Sons Ltd v Federal Steam

Navigation Co (1926) 24 Lloyd’s Rep 454 96

Martin Dockray, Cases and Materials on Carriage of Goods by Sea (3d edition

Cavendish Publishing Limited, London 2004) 46

49

extrapolates further to those matters, which is a concern of such owner

being engaged in particular trade for intended voyage.

Furthermore, these two concepts operate in different way. The definition of

private law seaworthiness given above states that the ship shall be

seaworthy at the commencement of the voyage. Therefore, this obligation is

discharged after departure of the ship whereas under requirements of

statutory seaworthiness, a ship must comply with relevant regulatory

conventions continually.

Finally, implied warranty of seaworthiness and statutory obligation of

seaworthiness shall be differentiated by their ability to be modified.

Absolute obligation of seaworthiness provided by common law may be

substituted by a duty to exercise due diligence provided by Hague or

Hague/Visby Rules. It is worthy to mention that according to the article 3(8)

of the convention, any further limitation of or exemption from of liability

shall be void. In contrast to flexibility of the private law, requirements of

statutory seaworthiness are rigid and cannot be traded. If a flag state wishes

to have own standards to be applicable to the ships flying its flag, such

standards shall be equivalent to those, which are prescribed by relevant

regulatory conventions.

Having showed vivid distinction between public and private law concepts of

seaworthiness, the latter shall be looked more thoroughly in order to

understand how the detention may influence it.

The origins of the implied warranty of seaworthiness may be traced back to

the Lyon v Mells case.97

In this case, the defendant agreed to lighter a cargo

owned by the plaintiffs from the quayside at a river to a vessel in the dock.

The lighter leaked and partly capsized, damaging the cargo. The defendant’s

defence was based on a public notice limiting liability of lighter men.

However, the judge stated that it was a term of every contract for the

carriage of goods, implied by law that the vessel is tight and fit for the

purpose. Therefore, the owner of the lighter was found liable for damages.98

Unfortunately, it is not possible within the scope of this thesis to examine all

chain of cases on seaworthiness to show its development up to now.

However, it is essentially important to show modern development of the

doctrine and its elements. With a view on this particular purpose, it is most

appropriate to take the Eurasian Dream case99

for analysis, since it contains

an essential restatement of the main elements of the modern law on

seaworthiness.100

Eurasian Dream was a car carrier, which was burned down together with

her cargo of new and second-hand vehicles due to number of causes. The

claimant’s (the cargo owner) position was that the vessel was unseaworthy

in many respects and, therefore, the shipowner is liable for damages. It was

established by the court that the cause of fire was simultaneous and

proximate refuelling and jump-starting operations carried out by stevedores

during discharge of the cargo in the port at Sharjah. The crew did not

supervise the cargo operations carried out by stevedores and initial fire was

97

Lyon v Mells (1804) 5 East 428 98

Dockray, supra note 96, p. 45 99

The Eurasian Dream [2002] 1 Lloyd’s Rep 719 100

Dockray, supra note 96, p. 46

50

not extinguished right away as the crew were improperly trained in fire

fighting. Furthermore, the master was improperly instructed on fighting

procedures of Eurasian Dream and Emergency Procedures Manual (and the

other manuals prepared by the company responsible for a technical

management of the ship) failed to give proper guidance. Therefore, the

master failed to properly apply the CO2 system to extinguish the fire.

Finally, there was lack of walkie-talkies, some fire extinguishers appeared to

have been defective and the main valve of the CO2 system appeared to have

been corroded.

Mr. Justice Cresswell reviewed relevant legal principles on the doctrine of

seaworthiness. The test of “prudent owner” was applied101

and it was stated

that the components of the duty to provide a seaworthy ship were as follows:

(1) The vessel must be in a suitable condition and suitably manned and

equipped to meet the ordinary perils likely to be encountered while

performing the services required of it. This aspect of the duty relates to the

following matters.

(a) The physical condition of the vessel and its equipment.

(b) The competence / efficiency of the master and crew.

(c) The adequacy of stores and documentation.

(2) The vessel must be cargoworthy in the sense that it is in a fit state to

receive the specified cargo.102

and as Hague Visby rules were incorporated into the bill of lading it

was earlier stated that:

In relation to due diligence, proof of unseaworthiness fulfils the same

function as res ipsa loquitur does in ordinary cases of negligence: The

Amstelslot, [1963] 2 Lloyd’s Rep. 223 at p. 235 per Lord Devlin; The Fjord

Wind, [2000] 2 Lloyd’s Rep. 191 at p. 205. In practical terms, the reasoning

is: “a ship should not be unseaworthy if proper care is taken” (per Lord

Justice Stuart-Smith).103

Hence, Eurasian Dream was found unseaworthy due to inadequacy of the

documentation supplied to the vessel, deficiencies and insufficiency of

vessel’s equipment, and want of competence and efficiency on the side of

the master and the crew. This case concerned majority of components of

seaworthiness but one component, namely cargoworthiness was not

considered. It is worthy to mention that cargoworthiness is rather peculiar to

private law concept of seaworthiness whereas the rest of components have

much more correlation with statutory seaworthiness and, in fact, they are

even based on statutory regulations. For example, in the Eurasian Dream

case, the argument, that the ship had been inadequately supplied with

documentation, was based on the regulation of part E (operational

requirements) of Chapter II-2 (Construction – Fire protection, fire detection

and fire extinction) of SOLAS. In the Tattersall v National Steamship Co

case, the implied warranty to make a ship seaworthy was construed in

relation to conditions for receiving and carriage of the cargo onboard.104

In

101

The Eurasian Dream case, supra note 99, para. 125 102

Ibid., para. 128 103

Ibid., para. 123 104

Tattersall v National Steamship Co (1884) 12 QBD 297

51

that case, shipped cattle were infected with foot and mouth disease because

of negligently cleaned and not disinfected cargo compartments. The judge

interpreted the bill of lading clause on the limitation of liability of the

shipowner as not applicable for the damage incurred by the cargo owner. It

was considered the damage was not within contemplated perils of the clause

and it was rather caused due to negligence from the side of the shipowner.

Another sphere of application of implied warranty of seaworthiness is

marine insurance. Section 39 of Marine Insurance Act 1905 stipulates that:

(1) In a voyage policy there is an implied warranty that at the commencement

of the voyage the ship shall be seaworthy for the purpose of the particular

adventure insured.

(2) Where the policy attaches while the ship is in port, there is also an

implied warranty that she shall, at the commencement of the risk, be

reasonably fit to encounter the ordinary perils of the port.

(3) Where the policy relates to a voyage which is performed in different

stages, during which the ship requires different kinds of or further preparation

or equipment, there is an implied warranty that at the commencement of each

stage the ship is seaworthy in respect of such preparation or equipment for

the purposes of that stage.

(4) A ship is deemed to be seaworthy when she is reasonably fit in all

respects to encounter the ordinary perils of the seas of the adventure insured.

(5) In a time policy there is no implied warranty that the ship shall be

seaworthy at any stage of the adventure, but where, with the privity of the

assured, the ship is sent to sea in an unseaworthy state, the insurer is not

liable for any loss attributable to unseaworthiness.

From the wording of subsection four, it is clear the implied warranty of

seaworthiness is applicable only to voyage policies. It is notable that the

definition of seaworthiness is essentially the same in comparison to that

used in the carriage of goods. However, there are also peculiar cases to

marine insurance. In the Gibson v Small case, it was given the tailor-made

test whether the ship is seaworthy pertaining to marine insurance contract

called as the prudent uninsured shipowner test:

…the contract, so construed, contains a condition that the ship insured has the

degree of fitness for the service it is engaged in, which is expressed by

seaworthiness; it being now settled that the term ‘seaworthy’, when used in

reference to marine insurance, does not describe absolutely any of the states

which a ship may pass through, from the repairs of the hull in a dock till it

has reached the end of its voyage, but expresses a relation between the state

of the ship and the perils it has to meet in the situation it is in; so that a ship,

before setting out on a voyage, is seaworthy, if it is fit in the degree which a

prudent owner uninsured would require to meet the perils of the service it is

then engaged in, and would continue so during the voyage, unless it met with

extraordinary damage.105

Hence, now it is possible to give a clear answer on the question how PSC

detention influences the contract of affreightment and marine insurance. In

the case of marine insurance contract, PSC detention may signify the breach

of implied warranty of seaworthiness by the shipowner. The breach of

implied warranty of seaworthiness entails that the insurer is discharged from

the liability as from the date of the breach of warranty. This rule is so strict

105

Gibson v Small (1853) 4 HL Cas 384

52

for the simple reason that fulfilment of the warranty is a condition precedent

to further liability of the insurer. Furthermore, it reflects the fact that the

rationale of warranties in insurance law is that the insurer only accepts the

risk if the warranty is fulfilled.106

It is not so easy to give straight answer with respect to the contract of

affreightment. The implied warranty of seaworthiness was categorised by

Lord Diplock as an innominate term in the Hong Kong Fir Shipping Co v

Kawasaki case by saying that:

…the shipowner’s undertaking to tender a seaworthy ship has, as a result of

numerous decisions as to what can amount to “unseaworthiness”, become

one of the most complex of contractual undertakings. It embraces obligations

with respect to every part of the hull and machinery, stores and equipment

and the crew itself. It can be broken by the presence of trivial defects easily

and rapidly remediable as well as by defects which must inevitably result in a

total loss of the vessel.

Consequently the problem in this case is, in my view, neither solved nor

soluble by debating whether the shipowner’s express or implied undertaking

to tender a seaworthy ship is a “condition” or a “warranty”. It is like so many

other contractual terms an undertaking one breach of which may give rise to

an event which relieves the charterer of further performance of his

undertakings if he so elects and another breach of which may not give rise to

such an event but entitle him only to monetary compensation in the form of

damages.107

As Lord Diplock said, there are two possible scenarios depending on

severity of the breach. One gives mere entitlement for seeking damages

caused by the breach and another is more severe, that is to say, the right to

repudiate the contract. The test employed by Lord Diplock to determine how

to qualify the innominate term is whether a charterer had been deprived of

substantially the whole benefit of the contract.

In carriage of goods by sea, unseaworthiness does not affect the carrier’s

liability unless it causes the loss.108

To say in different words, in order to get

awarded damages, it must be, first, proved that unseaworthiness that is

alleged by the claimant, has led to the loss or damage incurred by the

aggrieved party. It was reaffirmed in the Smith, Hogg v Black Sea and Baltic

General Insurance case that:

causes may be regarded not so much as a chain, but as a network. There is

always a combination of co-operating causes, out of which the law,

employing its empirical or common sense view of causation, will select the

one or more which it finds material for its special purpose of deciding the

particular case…109

Therefore, PSC detention may serve as a prima facie evidence in the court

only when the grounds for detention have a relation to the damage or loss of

106

Susan Hodges, Cases and Materials on Marine Insurance Law (Cavendish

Publishing Limited, London 1999) 227 107

Hong Kong Fir Shipping Co v Kawasaki [1962] 2 QB 71 108

The Europa [1908] P 84; Kish v Taylor [1912] AC 604 109

Smith,Hogg v Black Sea and Baltic General Insurance [1940] AC 997; Leyland

Shipping Co v Norwich Union Fire Insurance Co [1918] 1 AC 369

53

the cargo. However, the proof may be much facilitated by the PSC report

that is a huge advantage.

4.3 Allocation of PSC detention risk in time charter parties

Off-hire clause of time charter parties contemplate suspension of payment of

hire against agreed eventuality due to which there is a loss of time and

charterer is deprived from use of the vessel. The research question, that is

posed in this subchapter, is whether PSC detention is allocated within

wording of off-hire clauses of standard proforma charter parties.

To begin with, the nature and types of off-hire clauses shall be examined.

Off-hire clause is of protective character for charterers as it suspends the

fundamental right of a shipowner to receive a payment of the hire. Rhidian

Thomas describes an off-hire clause as a remedy the charterers may assert

without legal formalities although the ambit of an off-hire clause may

contemplate different situations falling within operation of the clause

whether the shipowner is liable or not.110

However, if the cause of an off-

hire event is attributable to a charterer then the right to invoke the off-hire

clause is lost. On the other hand, if the owner is in breach of the obligation

under time charter party, the charterer may seek a remedy by a separate

action without prejudice to the off-hire clause.111

Off-hire clause is entirely

independent from any breach of a contract by the shipowner. In The Ioanna

case it was pronounced that: “[o]ff-hire events are not necessarily a breach

of contract at all. So one should not be too surprised if one finds that cl. 51

[the off-hire clause] leads to a different answer than would ensue in the case

of a claim for damages for breach of contract.”112

Another important principle applicable to off-hire clauses is the burden to

show that the off-hire clause operates in relevant circumstances lies on the

charterer. In Royal Greek Government v. Minister of Transport case it was

stated that:

The cardinal rule … in interpreting such a charter-party as this, is that the

charterer will pay hire for the use of the ship unless he can bring himself

within the exceptions. I think he must bring himself clearly within the

exceptions. If there is a doubt as to what the words mean, then I think those

words must be read in favour of the owners because the charterers are

attempting to cut down the owners’ right to hire.113

There are three main components comprising of off-hire clause. They are

causes (off-hire events) and consequences of the causes, which are

separately divided into hindering or preventing the working of the vessel,

and loss of time. Subject to construction of the clause or separate paragraph

110

Prof. D. Rhidian Thomas, Legal Issues relating to Time Charterparties (Informa,

London 2008) 137 111

The Bridgestone Maru No. 3 [1985] 2 Lloyd’s Rep 62 112

The Ioanna [1985] 2 Lloyd’s Rep 164 113

Royal Greek Government v. Minister of Transport (1948) 82 Lloyd’s Rep 199

54

of the clause, loss of time may or may not be depended on hindering or

preventing the working of the vessel. Through analysis of majority of

standard proforma, charter parties all off-hire clauses in terms of PSC

detention may be classified into two categories. First represents off-hire

clauses with explicit inclusion of PSC detention as an off-hire event. Second

embodies the rest of off-hire clauses where PSC detention as an off-hire

event may be construed impliedly. The good example of first category is the

clause 21(a)(v) of Shelltime 4 which reads as:

“due to detention of the vessel by authorities at home or abroad attributable

to legal action against or breach of regulations by the vessel, the vessel’s

owners, or Owners (unless brought about by the act or neglect of Charterers);

then; without prejudice to Charterers’ rights under Clause 3 [duty to

maintain] or to any other rights of Charterers hereunder, or otherwise, the

vessel shall be off-hire from the commencement of such loss of time until she

is again ready and in an efficient state to resume her service from a position

not less favourable to Charterers than that at which such loss of time

commenced; provided, however, that any service given or distance made

good by the vessel whilst off-hire shall be taken into account in assessing the

amount to be deducted from hire.”

Second category is the largest as charterers’ concern about PSC detention is

relatively new. In spite of PSC detention is not explicitly mentioned in

majority of off-hire clauses, it may be inferred from the wording with help

of revenant case law. Second category itself can be divided into two

subcategories. First subcategory includes the off-hire clauses with

sweeping-up phrase. Second subcategory is singled out by inclusion of an

arrest of the vessel at the suit of a claimant as one of off-hire events, which

was put in the same line with a detention by port authorities by judges. Off-

hire clauses may contain both a sweeping-up phrase and legal arrest as off-

hire event at one time but it does no matter for categorisation of the content

of off-hire clauses. It is important to examine first subcategory in detail.

The classic off-hire clause representing first subcategory is the clause 15 of

NYPE 1946, which reads as:

“That in the event of the loss of time from deficiency of men or stores, fire,

breakdown or damages to hull, machinery or equipment, grounding,

detention by average accidents to ship or cargo, drydocking for the purpose

of examination or painting bottom, or by any other cause preventing the full

working of the vessel, the payment of hire shall cease for the time thereby

lost; and if upon the voyage the speed be reduced by defect in or breakdown

of any part of her hull, machinery or equipment, the time so lost, and the cost

of any extra fuel consumed in consequence thereof, and all extra expenses

shall be deducted from the hire.”

This clause contains all three elements where the certain causes are listed

such as grounding, and in the end of the list the sweeping-up phrase “any

other cause” is added. According to the ejusdem generis rule of

construction, “any other cause” shall be deemed in line with other causes of

the sentence such as deficiency of men or damages to hull. It means that

“any other cause” shall be construed as to refer to the same kind of causes,

55

which were specifically mentioned.114

Rhidian Thomas indicates these

various causes are common in that they relate in one or another way to the

chartered vessel “in herself” as they are internal in nature having an effect

on the vessel is working, her efficiency or availability.115

In The Laconian

Confidence case, it was stated by the court, “…a consideration of the named

causes indicates that they all relate to the physical condition or efficiency of

either vessel or cargo…”116

The PSC detention is external cause in nature as it is a measure imposed by

port authorities. However, is triggered by substandard condition of the ship.

In this case, PSC detention is not very external as it is associated with the

internal condition of the vessel. Therefore, there are two operative causes:

the external cause attributable to the port authorities, which immediately

affect the detention of the vessel and the internal cause, which is underlying

cause related to the condition of the vessel.117

In support of this statement, it

is appropriate to refer to the obiter dictum asserted in the The Mastro

Giorgis case:

Sometimes, however, there is a combination of causes. The immediate cause

may be extraneous, such as a refusal to grant free pratique, or a refusal to

allow the vessel to leave the port. But it may be necessary to go behind the

immediate cause to find the underlying cause. If the port authorities refuse to

allow a vessel to leave because her classification certificates are not in order,

or because she has an insufficient number of certificated officers, then she

would plainly be off-hire, even though the immediate cause of the detention

was the “extraneous” action of the authorities. The action of the authorities in

such a case would appear extraneous, but in reality it is not.118

Another later obiter dictum in The Laconian Confidence case pronounces in

unison that “where the authorities act properly or reasonably pursuant to the

(suspected) inefficiency or incapacity of the vessel, any time lost may well

is off hire even in the absence of the word ‘whatsoever’.”119

It is

complemented that it is not necessary that an internal cause shall be

established as a question of fact or law, it is sufficient that there was

reasonable belief in existence of the fact or legal right arising out of the

condition of the vessel and interference with operation of the vessel was

reasonable.120

A port authority may detain a vessel on the grounds, which

are later not substantiated, but, however, the action taken by the port

authorities may have been reasonable. Therefore, such case still falls within

off-hire clause. Nevertheless, in the absence of reasonable belief where the

conduct of port authorities may be unlawful, unjustified or unreasonable, the

vessel shall stay on hire. The most vivid example is The Laconian

Confidence case, where the judge criticised that the refusal by Bangladesh

port authorities to allow the vessel to leave the port due to the presence of

114

Terence Coghlin, Andrew W. Baker, Julian Kenny and John D. Kimball, Time Charters

(6th edition Informa Publishing, London 2008) 25.34 115

Rhidian Thomas, supra note 110, p. 141 116

The Laconian Confidence [1997] 1 Lloyd’s Rep 139 117

Rhidian Thomas, supra note 104, p. 147 118

The Mastro Giorgis [1983] 2 Lloyd’s Rep 69 119

The Laconian Confidence, supra note 116, p. 151 120

Ibid.

56

approximately 15 tonnes of residue sweeping onboard was highly

bureaucratic attitude.121

Therefore, it was ruled that the vessel was not off

hire.

Finally, in order to draw a solid line between external and internal causes,

some cases of pure external causes shall be reviewed. In The Auqacharm

case, Panama Canal authorities refused the vessel to pass through the canal

because of excessive draft. The vessel was overloaded by mistake of the

master. Therefore, it was required to discharge a part of her cargo, which

was carried together with the vessel by a smaller vessel and then reloaded

onboard Auqacharm. The vessel was not held off-hire during the period of

delay as:

“Aquacharm could not pass through the canal because the canal authorities

decided she was carrying too much cargo, but that decision did not in any

way reflect upon Aquacharm’s efficiency as a ship and Aquacharm remained

at all times an efficient ship; she was capable of “full working” within the

meaning of the off hire clause and the charterers could not succeed under this

head.122

”

The judge applied the reasoning from the earlier leading Court Line Ltd. v.

Dant & Russell Inc. case, where the chartered vessel was blocked by a boom

placed in the Yangtse river by Chinese forces during the war between China

and Japan in 1937.123

According to the clause 15 of NYPE 1946, there must be a loss of time

resulted from the prevention of the full working of the vessel, which caused

by the off-event irrespective of being named or within the phrase “any other

cause”. Therefore, the very next question to be answered while trying to

invoke such off-hire clause is whether the full working of the ship is

prevented. In one of the recent cases, The Berge Sund124 it was reaffirmed

the principle from Hogarth v. Miller case125

stated by the judge, namely “I

should read the contract as meaning this… that she should be efficient to do

what she was required to do when she was called upon to do it.” Hence, if

the next operation that charter service requires from the ship is to sail to the

discharge port, but she is unable to do so, then the ship is being prevented

from working. On the other hand, if the situation is that the ship unable to

sail, but the next operation required of her is to remain at berth and

discharge, the full working of the ship has not been prevented.126

Therefore,

the critical question to determine whether the full working of the ship is

prevented is whether she is able to perform next operation required by the

charterer.

Hence, it is possible to assert that PSC detention is within one of standard

off-hire events.

121

Ibid., p. 144 122

The Auqacharm [1982] 1 Lloyd’s Rep 7 123

Court Line v. Dant & Russell (1939) 64 Lloyd’s Rep 212 124

The Berge Sund [1993] 2 Lloyd’s Rep 459 125

Hogarth v. Miller [1891] A.C . 56 126

Terence Coghlin, Andrew W. Baker, Julian Kenny and John D. Kimball, supra note

114, 25.9

57

5 Development of PSC and other ways for ascertaining observance of IMO instruments

5.1 Intensifying interrelation between PSC and FSI

Flag states as the most important “principal actors in international

shipping”127

are primarily responsible for the realisation of the provisions of

the international maritime conventions. As it was shown in the

subchapter 1.2, the failure of flag states to fulfil their duties under the

international maritime conventions entailing the escalation of the number of

substandard ships has become a catalyst for turning port states to use their

right to enforce port state jurisdiction in order to protect their waters from

substandard ships. Initially, PSC, exercised by traditional maritime powers,

concerned about maritime safety and protection of marine environment as

well as distorted competition, was viewed as the contrasting mechanism to

FSC to force reluctant and negligent maritime administrations of some flag

states to discharge properly their international obligations. Subsequent

serious maritime disastrous, involving loss of human lives and pollution of

marine environment, urged regional port states to establish effective means

of cooperation in conducting PSC. With that emergence of the regional PSC

regimes through the establishment of the regional MoUs agreements, first

time ability to interrelate PSC and FSC had appeared through the PSC

statistics reviling the data on detention of the vessels of particular flag states

as an indicator of flag state performance.

Another milestone of development of this process was establishment of

IMO FSI subcommittee in early nineteen nineties, which fostered IMO work

on last unmanaged area with respect to implementation and enforcement of

IMO mandatory instruments by flag states. New IMO instruments on FSI

employ the data from PSC regional MoUs to assess flag states. In its turn,

PSC uses devised mechanisms of FSI instruments for more effective

targeting system. Therefore, the interaction between PSC and FSI must be

thoroughly explored. The greater focus should be devoted to contemporary

development of FSI, which will have a significant impact on PSC.

As PSC basis was analysed in subchapter 1.2, first, it is important to skim

through FSC basis in order to observe international legal framework thereof

and compare with PSC. According paragraph one of the article 94 of

127

Expression used is adopted from the article by Lawrence D. Barchue, ‘The Voluntary

IMO Member State Audit Scheme: An Accountability Regime for States on Maritime

Affairs’ (2009) 8 WMU Journal of Maritime Affairs 62

58

UNCLOS “every State shall effectively exercise its jurisdiction and control

in administrative, technical and social matters over ships flying its flag.”

The article singles out further one of fundamental duties of flag state that is

to take measures for ships flying its flag as are necessary to ensure safety at

sea which should include, inter alia, with respect to the construction,

equipment and seaworthiness of ship; the manning of ships, labour

conditions and the training of crews; and the use of signals, the maintenance

of communications and the prevention of collisions. This provision sets

fundamental universal duties of every flag state and simultaneously it is a

blueprint of such conventions as SOLAS, STCW, COLREG, and ILO147

and MLC. Paragraph four of this article provides for one of the most

important methods of FSC that is survey by a qualified surveyor of ships.

The flag states duty to protect marine environment is stipulated by the

article 217 of UNCLOS. It provides for flag state responsibility to ensure

compliance by vessels flying their flag with applicable international rules

and standards with respect to prevention, reduction and control of pollution

of the marine environment from vessels and therefore, flag states shall adopt

laws and regulations and take other measures necessary for their

implementation. Furthermore, flag states shall provide for the effective

enforcement of such rules, standards, laws and regulations, irrespective of

where a violation occurs. Paragraph three imposes duty on flag states to

ascertain that ships under their flag carry on board certificates required by

and issued pursuant to international rules and standards, and they are

periodically inspected in order to verify that such certificates are in

conformity with the actual condition of the vessels.

It is necessary here to find distinguishing points between PSC and FSC in

order to highlight their roles and targeting goals. First, it must be underlined

that FSC is a duty of every state, which entitles ships to fly its flag. In other

words, it means the right of a state to entitle ships to fly its flag entails

obligation to assure that those ships under its flag are technically sound, do

not possess danger to marine environment and respective labour standards

onboard of a ship are observed. According to customary international law

and the article 218 of UNCLOS, PSC is a right of a port state in order to

protect their waters from marine pollution or other threats.

It must be emphasised that PSC is a complimentary regime to FSC.

However, PSC becomes a duty when a state is a party to regulatory

maritime conventions such as SOLAS and MARPOL employing PSC to

ascertain that the ships calling its port will not proceed to sea until it

presents danger to the ship, persons onboard or marine environment. In

other words, PSC starts playing its role when FSC fails to assure the ships

are in conformity with respective international rules and standards. PSC has

become the next control layer after FSC. Therefore, PSC is a

complementary mechanism to FSC and it cannot substitute FSC. There is

very well made point showing that PSC cannot substitute FSI as it is not

able to solve the problem of domestic shipping especially relevant for

archipelago states.128

There is also a good explanation of correlation of PSC

128

Iqbal Fikri, ‘Flag State Control: an Overview and its Relationship with Port State

Control’ (Master thesis, World Maritime University 2007) 53

59

and FSC: “[t]he better flag state control is in exercising the duties, the

lighter the tasks of port states are.”129

The first consistent IMO instruments aimed to facilitate FSI was elaborated

in 1997.130

The preamble of the resolution A.847(20) notes that the ultimate

effectiveness of any convention depends upon all states through becoming

party to the instruments, implementing them widely and effectively,

enforcing the rigorously and reporting to IMO. As a starting point, the

resolution sets when a convention enters into force for a state, the

government of that state must be in a position to implement its provisions

through appropriate national legislation and to provide the necessary

infrastructure. In order to effectively discharge its responsibilities, flag state

should implement policies through the issuance of national legislation and

guidance which will assist in the implementation and enforcement of the

convention requirements; assign responsibilities within the maritime

administration to update and revise the policies; and embedded these

functions in long-term strategic planning document.131

As a core part of

implementation, section four focuses on delegation of authority to RO that

should be in conformity with respective IMO resolution. The next

subchapter will examine it in detail. Section six complements those

provisions with provisions for qualification of flag state surveyors which is

supposed to be applicable vis-à-vis RO surveyors acting on behalf of a state.

Section five provides guidelines for implementation of the article 94 of

UNCLOS. Section seven contains guidelines for flag state investigation. It

provides basic principles of casualty investigation and further refers to IMO

Code for the Investigation of Marine Casualties and Incidents. The appendix

of the resolution suggests a possible framework for national legislation

implementing the SOLAS, MARPOL, LOADLINE and STCW. The next

logical step was preparation of the guidelines to assist flag states in the self-

assessment of their performance in 1999132

with changes in 2001.133

The

self-assessment guidelines employ the recommendatory framework for flag

state implementation in the resolution A.847. The resolution A.912 provides

criteria how to assess flag state performance and there is a detailed form

with questions on each element of performance in the annex thereto. These

two resolutions had been further step towards elaboration of proper IMO

FSI framework but it was obvious that it was not enough to achieve that

purpose. The further work had been continuing.

In 2002 IMO Council approved the initiative of 19 Member States to

develop IMO model Audit Scheme. ICAO Universal Safety Oversight

Programme was taken as a base.

The work was split into two routes: development of the code for the

implementation of mandatory IMO instruments, which would serve as audit

standard and development of framework and procedure for Audit Scheme

129

Ibid, 50 130

IMO Resolution A.847(20) Guidelines to Assist Flag States in the Implementation of

IMO Instruments (adopted 27 November 1997) 131

Ibid, sec. 3.1 132

IMO Resolution A.881(21) Self-Assessment of Flag State Performance


IMO Resolution A.912(22) Self-Assessment of Flag State Performance

(adopted 29 November 2001)

60

by joint working group established within MSC, MPEC and TCC.134

In

2003 the IMO resolution, which approved the establishment and further

development of the VIMSAS, was adopted.135

The next step was taken in

2005, which resulted in adoption of the Code for the implementation of

mandatory IMO instruments136

and framework and procedure for

VIMSAS.137

The current version of the code138

is comprised of four areas. The common

areas include provisions on objective, strategy, scope, initial actions, and

communication of information, records and improvements.

Setting the objective to enhance global maritime safety and protection of the

marine environment, the strategy provides with main approaches to be used

for that, namely to implement and enforce relevant international mandatory

instruments; adhere to international recommendations, review and verify

continuously the effectiveness of the state in respect of meeting its

international obligations; achieve, maintain and improve overall

organizational performance and capability. The states should communicate

its strategy including information on its national legislation to all concerned.

The scope of the code covers main IMO regulatory conventions as SOLAS,

MARPOL, SCTW, LOADLINE, TONNAGE and COLREG. States should

continually improve the adequacy of the measures, which are taken to give

effect to those conventions, and protocols, which they have accepted.

Improvement should be made through rigorous and effective application and

enforcement of national legislation and monitoring of compliance. Initial

actions are in consistency with resolution A.847(20), being more elaborated.

Three other areas are devoted on three different embodiments of states such

as flag, coastal and port and states.

The flag state part traditionally focuses on implementation, delegation of

authority, enforcement, flag state surveyors, casualty investigation and

evaluation. In accordance with section 15, implementation is comprised of

two elements, namely to give effect to the provisions of IMO applicable

conventions through enactment of national legislation where necessary and

organisational element which is, in large, based on assignment of

responsibilities within maritime administration to update and revise any

relevant policies adopted and establishment of resources and processes

capable of administering a safety and environmental protection programme.

Very important element of FSI is delegation of authority, which will be

examined, in great detail in next subchapter. However, it is appropriate and

even necessary for consistency of the text to introduce the topic in this

subchapter. Mr. Barchue has described partially the scourge of ROs as the

intensification of commercial pressure on the ROs due to fact that many

134

Barchue, supra note 127, 64 135

IMO Resolution A.946(23) Voluntary IMO Member State Audit Scheme (adopted 27

November 2003) 136

IMO Resolution A.973(24) Code for the Implementation of Mandatory IMO

Instruments (adopted 1 December 2005) 137

IMO Resolution A.974(24) Framework and Procedures for the Voluntary IMO Member

State Audit Scheme (adopted 1 December 2005) 138

Resolution A.1054(27) Code for the Implementation of Mandatory IMO Instruments


61

ROs have other business interests with ships flying the flag of the state

delegating authority to such ROs. He indicates that it may cause the conflict

between ROs role acting as certifier and inspector on behalf of the flag state

and their commercial relationship as a classification society.139

Another

major quandary created by some ROs with very low performance, which is

shown in subchapter 5.2.4. It is important to contemplate that delegation of

statutory duties to ROs creates the new duty for maritime administration –

effectively and continually monitoring and supervision of the work of ROs.

Section 18 of the code provides for the flag states authorizing ROs to act on

their behalf must regulate such authorization in accordance with SOLAS

regulation XI-1/1. Furthermore, the flag state should establish or participate

in an oversight programme with adequate resources for monitoring of, and

communication with, its ROs in order to ensure that its international

obligations are fully met.

Enforcement provisions direct to the flag state to provide for sanctions for

that ship flying under its flag, which are failed to comply with requirement

of relevant conventions. The rest of provisions on flag states are in

consistency with resolution A.847(20), being also more detailed.

Part three and four of the code specify that coastal and port states have

certain obligations under various mandatory IMO instruments which must

be given due implementation and provided with appropriate enforcement

mechanism. Section 51 indicates that port states can play an integral role in

the achievement of maritime safety and environmental protection, including

pollution prevention. This section recognises the importance of port state to

achieve set goals mainly through application of PSC mechanism.

The current resolution A.974(24) provides with VIMSAS engine to be

worked together with the code which is a audit standard for VIMSAS. Such

important principals were embedded in VIMSAS as sovereignty and

universality, transparency and disclosure, consistency, fairness, objectivity,

and timeliness, cooperation and continual improvement.

In accordance with section 8 of the resolution, the Secretary-General of

IMO is responsible, with respect to VIMSAS, for, inter alia, the

implementation of the audit scheme, formal appointment and maintenance

of an appropriate list of audit team leaders and auditors as well as

establishing an audit team for each member state audit and concluding a

Memorandum of Cooperation with the member state to be audited.

Annex one of the resolution provides for the procedure for VIMSAS.

VIMSAS consists of several phases as planning, preparation for the audit,

conduction the audit, reporting, member state correction plan, and records

and follow-up. Planning phase consists of appointment of an audit team

leader by the Secretary-General, determination of the scope of audit by audit

team leader, signing of Memorandum of Cooperation, nominations and

selection of auditors and audit team.

Groundwork for audit requires the preparation of pre-audit questionnaire

answered by member state to be audited prior to the audit. The questionnaire

consists of main areas of audit and supplementary information including

general information of a state and its maritime authority, areas of

139

Barchue, supra note 127, 63

62

responsibility, information on international instruments, enforcement,

investigation and analysis of marine casualties and pollution incidents, PSC

activities, coastal state activities, reporting requirements, management

systems, evaluation and review.

The conduct of the audit consists of setting its timeline, opening meeting

when the auditors and the representatives of the member state to be audited

should be held in order to confirm the arrangements prior to commencing

the on-site audit, the actual audit and closing meeting where the opportunity

for the audit team to brief all relevant personnel from the audited member

state on findings relating to the audit is provided.

VIMSAS contemplates several audit reports. The audit interim report is a

formal report of the audit findings submitted to the member state. The

member state’s corrective action plan should be based on the audit interim

report. The member state corrective action plan responds to the audit

findings by proposing action to bring the member state in conformity or

adherence with the code. The audit final report represents the official and

actual report of the audit, which shall include an analysis of the member

state corrective action plan submitted by the audited state. An audit follow-

up should, if applicable, be conducted between one and two years following

a member state audit, in order to determine the status of implementation of

the corrective action plan. An audit summary report, which will as far as

practicable not identify the audited member state and will provide an

overview of that audited member state’s adherence to the code and

applicable IMO instruments. The audit team leader should prepare a

separate report describing the conduct of the audit, positive elements and

difficulties encountered and proposals to improve the planning and conduct

of audits facilitating sustainability of VIMSAS. The resolution also contains

the Memorandum of Cooperation and the pre-audit questionnaire.

According to IMO time frame and schedule of activities to institutionalize

VIMSAS, it shall become MIMSAS on 1 January 2015.140

It was well

explained why some member states have been reluctant to participate in

VIMSAS, namely, inter alia, insufficiency and inexperience of maritime

administration personnel, additional expenses, inability to change national

law.141

However, with introduction of MISAS, the situation is supposed to

change. There is even a suggestion that the ships flying under the flag of

those states, which have not been undergone through MISAS may be

permanently banned by PSC MoU following ICAO experience.142

Perhaps,

it is a too far suggestion for now taking into consideration that shipping is

quite conservative in its nature but it, definitely, is an option that may

happen in unforeseeable future.

There is a devised mechanism to introduce MIMSAS, which was presented

on 20th session of FCI.143

It is prepared that the draft of new IMO

140

IMO Resolution A.1018(26) Further Development of the Voluntary IMO Member State

Audit Scheme (adopted 25 November 2009) 141

Afriyie Kwaku Anthony, ‘An Analysis of the Voluntary IMO Member State Audit

Scheme’ (Master thesis, WMU 2007) 66 142

Qiu Jianwei, ‘Voluntary IMO Member State Audit Scheme: its status, trend and

challenges’ (Master thesis, WMU 2006) 44 143

FSI 20/12 of 21 December 2011Review of the IMO Instruments Implementation Code:

adoption of, and amendment to, the III Code noted by the Secretariat

63

Instruments Implementation Code which will be made mandatory through

inclusion of respective provisions in SOLAS (chapter XIII), LOADLINE

(regulation 3 of Annex I of Annex B), MARPOL (regulation 1 of Annexes I,

II, III, IV, V and regulation 2 of Annex VI), COLREG (Part F of Annex),

TONNAGE (regulation 2 of Annex I, regulation 8 of Annex 3). Provisions

incorporating the code stipulate that member states shall apply the

provisions of the code in the execution of their obligations and

responsibilities contained in the conventions. For the purpose of that

regulation, the requirements of the code shall be treated as mandatory and

its recommendations shall be treated as non-mandatory. Every member state

shall have responsibility for facilitating the conduct of the audit and

implementation of a programme of actions to address the findings, based on

the framework and procedures for the audit scheme.

It can be concluded that with development of IMO FSI VIMSAS (and

consequently MIMSAS) mechanism, it is possible to find interdependence

between FSI and PSC. VIMSAS uses PSC data to measure flag state

performance and Paris MoU takes into consideration VIMSAS audited

states for assignment to ships of low priority for inspections. It is believed

that it is a matter of time when other PSC MoUs will develop similar

selection scheme to Paris MoU as it is more effective and allow to lessen

number of inspection focusing only on more probable substandard ships

relieving the overload of PSCO.

5.2 Consideration for possible strengthening of IMO regulation on ROs

The role of ROs in contemporary shipping industry extremely significant as

majority of flag states entrust them to carry out, to some extent, duties under

IMO conventions. Thus, there is direct dependence between performance of

ROs and discharge of technical duties of flag states. PSC statistics reveal

that there are a number of classification societies, which do not perform

their duties in proper manner. The ships, which were surveyed with so-

called convenient ROs, have been found with detainable deficiencies. This

subchapter will focus on this problem and will endeavour to contemplate

possibility to strengthen the control over ROs.

5.2.1 International legal framework on delegation of flag state duties to ROs

IMO conventions, which require a ship to be surveyed and then subject to it

to be certified in order to ascertain that she is in compliance with the

provisions of a convention, give the option to the maritime administrations

to delegate this function to the nominated surveyors or ROs. The closer look

must be given to the provisions of those conventions. In general, it can be

characterised that ROs are associated rather with technical conventions as

their significant experience in providing technical expertise for shipping

64

industry doubled with broad geographical coverage of representatives is

fully appreciated by the maritime administrations.

The common pattern provision used in all conventions is that officers of the

maritime administration shall carry out certain functions as inspections

and/or surveys (in case of TONNAGE, determination of gross and net

tonnage) for implementation or enforcement of the convention. However,

these functions may be entrusted to nominated surveyors or ROs by

maritime administration.144

Every convention also emphasises on very

important aspect that in every case maritime administration should be fully

responsible for the certificates issued under its authority either by the

officers of the administration or recognised organisation.

The provisions on ROs of SOLAS, MARPOL and AFL are much more

elaborated in comparison with rest conventions. These conventions further

require when maritime administration, nominating RO to conduct

inspections and/or surveys, shall as minimum empower them to require

repairs to a ship and to carry out inspections and surveys if requested by the

appropriate authority of a port state. Hence, important conclusion follows

that this provision constitutes not only nexus of RO with port authority but

shows significance of RO for port state control as it may be requested to

conduct more detailed inspection. When PSC officer notifies RO that some

deficiencies of the vessel under inspection are found then very important

obligation for RO under these convention will start playing its role. When

RO determines that condition of the ship or its equipment does not

correspond substantially with the particulars of the certificate or the ship is

not fit to proceed to sea without danger to the ship or crew onboard, such

RO shall unsure that corrective action is taken and shell notify maritime

administration. If appropriate corrective measures are not taken the relevant

certificate should be cancelled and maritime administration should be

immediately notified about that, and if the ship is in the port of another

state, the PSC authority should be notified as well. In its turn, port state has

obligation before RO to give any necessary assistance to carry out their

obligations under those conventions. The same provisions contain the

requirement for port state to ascertain that the ships shall not sail until it can

proceed to sea without danger to the ship or persons onboard. It must be

concluded that these provisions establish triple relationship among RO,

maritime administration and port state authority. Therefore, while

considering PSC inspection this triple relationship should be taken into

account.

144

International Convention for the Safety of Life at Sea (adopted 1 November 1974,

entered into force 25 May 1980) Chapter I Reg. 6;

International Convention for the Prevention of Pollution from Ships (adopted 2 November

1973, entered into force 2 October 1983) Annex I Reg. 6, Annex II Reg. 8, Annex IV Reg.

4, Annex VI Reg. 5;

International Convention on Load Lines (adopted 5 April 1966, entered into force 21 July

1968) Art. 13;

International Convention on Tonnage Measurement of Ships (adopted 23 June 1969,

entered into force 18 July 1982) Art. 6;

International Convention on the Control of Harmful Anti-fouling Systems on Ships

(adopted 05 October 2001, entered into force 17 September 2008) Annex IV Reg. 1;

Maritime Labour Convention, 2006 (adopted 7 February 2006) Reg. 5.1.1

65

Regulation 1 of Chapter XI-1 of SOLAS, and regulation 6 of Annex I and

regulation 8 of Annex II of MARPOL explicitly provide that ROs shall

comply with two IMO resolutions: A.739(18) and A.798(19). There is one

more convention mentioning these resolutions – AFL. However, regulation

1 of Annex IV thereof has only footnote reference to them that does create

some uncertainty especially in contrast to SOLAS and MAROL provisions.

Resolutions A.739(18) adopts guidelines for the authorisation of

organisations acting on behalf of the maritime administration. The

guidelines underline necessity for the control in the assignment of authority

under international conventions to ROs.145

There are certain conditions for

such assignment of authority. Those conditions set certain standard of RO

resources, require formal written agreement between the maritime

administration and RO to be concluded, specify actions to be followed in

case of a ship to be found substandard, oblige a maritime administration to

provide RO with all appropriate instruments of national law in relation to all

conventions concerned, and put the duty on RO to maintain records and to

provide the maritime administration with data to assist in interpretation of

convention regulations

Latter resolution adopts the specifications on the survey and certification

functions of RO. Specifications are divided into four elementary modules:

management, technical appraisal, surveys, qualifications and training, and

there are separate specifications pertaining to various certificates in the end

as well.146

In considering provisions on ROs of maritime regulatory conventions, MLC

stands alone. The wording of provisions on ROs of MLC has considerable

difference with rest conventions. Paragraph 3 of regulation 5.1.1 and

paragraph 1 regulation 5.1.2 of MLC makes emphasis on competency and

independency of RO unlike to the rest of conventions. Regulation 5.1.2 also

stipulates that inspection or certification functions, which ROs may be

authorized to carry out, shall come within the scope of the activities that are

expressly mentioned in the MLC. Mandatory standard A5.1.2 explains what

conditions should be fulfilled to consider ROs as competent and

independent, namely they are: necessary expertise; ability to maintain and

update the expertise of its personnel; necessary knowledge of the convention

and applicable national laws and regulations; appropriate size, structure,

experience and capability commensurate with type and degree of

authorization.

The standard stipulates as well that ROs shall be, as minimum, empowered

to require the rectification of deficiencies in seafarers’ working and living

conditions and to carry out inspections at the request of the port state similar

provision with other conventions. This provision is quite similar to those

contained in SOLAS and MAROL. However, it is modified to serve goals

of MLC.

145

IMO Resolution A.739(18) Guidelines for the Authorisation of Organisations acting on

behalf of the Administration (adopted 4 November 1993) 2 146

IMO Resolution A.789(19) Specifications on the Survey and Certification Functions of

Recognized Organizations acting on Behalf of the Administration (adopted 23 November

1995) 3

66

Unlike IMO conventions, this standard requires from participating state to

establish a system to ensure the adequacy of work performed by ROs.

However, the standard mentions only information on all applicable national

laws and regulations and procedures for communication with RO and in

case of oversight.

Recommendatory guideline B5.1.2 complements aforementioned standard

with qualitative conditions, which RO seeking recognition shall comply

with. The conditions are of the similar nature as required by IMO resolution

A.739(18). Similarly, the guideline states that competent authority should

conclude written agreement with RO, which should include specified

elements. However, the content of the agreement is much less elaborated in

the guideline.

STCW is not within the scope of the work of ROs but it also contains

provisions in case if a state, which is party the convention, renders duties

under the convention to the non-governmental organisations like ROs.

According to the convention, each party shall ensure that all training

assessment of competence, certification carried out by non-governmental

organisations are continuously monitored through a quality standards

system.147

As it was shown, enforcement of the technical provision of IMO

conventions as SOLAS and MAROPOL is done through surveys and

certification, which are usually carried by ROs. As it is the most critical part

in the implementation of the conventions, IMO has elaborated the

harmonised system of surveys and certifications applicable both for

maritime administrations and ROs.148

The system contains specific rules for

each type of survey to each convention (SOALS, MARPOL and

LOADLINE) and mandatory code.

IMO has elaborated the model agreement between flag state and ROs

governing the delegation of statutory certification in support of provisions

of annex two of the resolution A.739(18).149

It may be concluded that there is already extensive international legal

framework, which regulates the activity of ROs. However, it still leaves

many issues to discretion of flag states. Besides international legal

regulation of ROs, there is also EU model, which is more stringent.

5.2.2 EU standards for ship inspection and survey organisations

The current EU legislation on ROs was enacted in 2009, which is comprised

of the respective directive150

and regulation.151

The directive (EC) 2009/15

147

International Convention on Standards of Training, Certification and Watchkeeping for

Seafarers (adopted 7 July 1978, entered into force 28 April 1984) Chapter I Reg. I/8 148

IMO Resolution A.1053(27) Survey Guidelines under the Harmonized System of

Survey and Certification (HSSC), 2011(adopted 30 November 2011) 149

MSC/Circ.710, MEPC/Circ.307 150

European Parliament and the Council Directive (EC) 2009/15 on common rules and

standards for ship inspection and survey organizations and for the relevant activities of

maritime administrations [2009] OJ L131/47

67

in general aims to ensure that the maritime administrations of the member

states can assure an appropriate enforcement of the provisions of the

international conventions, in particular with regard to the inspection and

survey of ships and the issue of certificates and exemption certificates.152

It

establishes measures to be followed by the member states and organizations

concerned with the inspection, survey and certification of ships for

compliance with the international conventions on safety at sea and

prevention of marine pollution.153

The wording of general provisions

reflects EU policy for effective implementation of international maritime

regulatory convention in the region.

The member states are obliged to authorize only those organisations, which

are recognised by EU. Accordingly, the member states, which wish to grant

an authorisation to any organisation, which is not yet recognised, shall

submit a request for recognition to the Commission together with complete

information on, and evidence of, compliance with the minimum criteria for

ROs.154

The Commission jointly with member state requesting such RO

recognition shall carry out assessment of RO with respect to compliance

with set minimum criteria. Finally, recognition is granted by the EU

Commission, which is assisted by the Committee on Safe Seas and the

Prevention of Pollution from Ships created according to article 3 of

Regulation No 2099/2002 of the European Parliament and of the Council of

5 November 2002. All the organisations, which are granted recognition shall

be closely monitored by the Committee. The list of the organisations

recognised is published in the Official Journal of the European

Communities.

With a view to ensure the freedom to provide services it is provided for that

member states shall in principle not refuse to authorise any of RO.

However, they may restrict the number of organisations they authorise in

accordance with their needs provided there are transparent and objective

grounds for so doing.155

The principle of reciprocity is embedded in the

paragraph 2 of the article 4. Hence, in order for a member state to accept RO

located in the state outside EU, the member state or the Community may

request the third state in question to grant reciprocal treatment for those RO,

which are located in the EU.

The directive (EC) 2009/15 sets that there must be the legal agreement

between RO and maritime administration of a member state. Its provisions

should be based on IMO recommendatory framework. Furthermore, the

directive stipulates the provisions on financial liability. In a view of that if

liability arising out of any incident is finally and definitely imposed on the

maritime administration by the court or as part of the settlement of a dispute

through arbitration procedures, together with a requirement to compensate

the injured parties for loss or damage to property or personal injury or death,

151

European Parliament and the Council Regulation (EC) 391/2009 on common rules and

standards for ship inspection and survey organisations 152

European Parliament and the Council Directive (EC) 2009/15, supra note 150, art. 3 153

Ibid, art. 1 154

European Parliament and the Council Regulation (EC) 391/2009, supra note 151,

art. 3(1) 155

European Parliament and the Council Directive (EC) 2009/15, supra note 150, art. 4

68

which is proved in that court to have been caused by a wilful act or omission

or gross negligence of the RO, its bodies, employees, agents or others who

act on behalf of the RO, the maritime administration shall be entitled to

financial compensation from RO to the extent that the said loss decided by

the court.156

According to subparagraphs two and three of the article, the

member state may limit the maximum amount payable by the RO, which

must, however, be at least equal to EUR 4 million for personal injury or

death and EUR 2 million for loss or damage to property. The directive

established quite high threshold of financial liability of RO in comparison to

the maritime conventions on limitation of liability.157

The regulation (EC) 391/2009 imposes range of duties on ROs. One of the

most topical requirements that RO shall demonstrate willingness to

cooperate with PSC administrations when a ship of their class is concerned,

in particular, in order to facilitate the rectification of reported deficiencies or

other discrepancies.158

This legal norm facilitates necessary legal nexus

between PSC and ROs, which is missed in the IMO regulations.

Another important duty is that ROs have to consult with each other

periodically with a view to maintaining equivalence and aiming for

harmonisation of their rules and procedures and the implementation thereof.

They shall cooperate with each other with a view to achieving consistent

interpretation of the international conventions, without prejudice to the

powers of the flag states. Recognised organisations shall, in appropriate

cases, agree on the technical and procedural conditions under which they

will mutually recognise the class certificates for materials, equipment and

components based on equivalent standards, taking the most demanding and

rigorous standards as the reference.159

All the ROs shall be assessed by the Commission together with the member

state, which submitted the relevant request for recognition. The assessment

may include a visit to regional branches of the organisation as well as

random inspection of ships for auditing the RO performance. The

Commission shall provide the member states with a report of the results of

the assessment.160

Hence, the regulation has elaborated collective measures

for assurance of quality of performance of RO operating on the territory of

EU.

In general, it may be concluded that EU legislation on RO incorporates IMO

regulations on RO and further develops them envisaging more stringent

156

Ibid, art. 5(2) 157

Convention on Limitation of Liability for Maritime Claims, 1976 (adopted 19 November

1976, entered into force 1 December 1986) articles 6,7,8;

Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims,

1976 (adopted 3 May 1996, entered into force 13 May 2004) articles 3,4,5;

IMO Resolution LEG.5(99) Adoption of Amendments of the Limitation Amounts in the

Protocol of 1996 to the Convention on Limitation of Liability for Maritime Claims, 1976

(adopted 19 April 2012, entry of amendments into force 8 June 2015);

International Convention relating to the Limitation of the Liability of Owners of Sea-Going

Ships, and Protocol of Signature (adopted 10 October 1957, entered into force 31 May

1968) art. 3 158

European Parliament and the Council Regulation (EC) 391/2009, supra note 151,

art. 10(3) 159

Ibid, art. 10(1) 160

European Parliament and the Council Directive (EC) 2009/15, supra note 150, art. 11

69

regime for RO operating in EU. However, EU is comprised of just 27 states

currently. Therefore, the key question is whether international regulation is

sufficient for achievement of principal task – elimination of substandard

shipping. Before investigation whether ROs properly perform their duties

under the international conventions, it must be briefly said about those

organisations, which stand actually behind this generic term “recognised

organisations.”

5.2.3 Examination of classification societies acting as ROs

It is classification societies, which are assigned by flag states

administrations to carry out their functions under international conventions.

In some cases, they are, to significant extent, responsible for flag state

control functions and even their performance is much more effective than

some other maritime administrations due to lack of financial means or

qualified personnel. With available IMO, consolidated data on 2001 there

are 59 non-governmental organizations authorized almost by every flag state

to carry out surveys and issue certificates on behalf of maritime

administration.161

The reasons, why classification societies have competitive

advantages (expressing it with the term of economics) over maritime

administration, are much more sophisticated rather than simple explanation

through prism of financing or matter of personnel competence. The essence

of shipping business is to move cargo from country A to country B.

Therefore, it often happens that due to market demand a vessel may not call

the port of registration if ever after registration and in many case physical

presence of the vessel is not even the requirement for ship registration.

According to public international law, a state cannot exercise its power on

the territory of another state without the consent of latter state.162

Classification societies facilitate international shipping and make it possible

for a ship to be surveyed in the majority of ports in the world instead of

sailing back to the port of registry.

Another side of classification societies business is classification service,

which has been initial function of classification society emerged from

demand of marine insurance industry. Marine underwrites have been keen to

make sure that the vessel, which is going to be insured, is technically sound

and will not sink in the next voyage. The history of this business traces back

to the eighteen century with its very bright content. However, it is not the

purpose of this thesis to mention it.

It is also important to mention IACS, which can trace its origins back to the

1930 LOADLINE. The convention recommended collaboration between

classification societies to secure as much uniformity as possible in the

application of the standards of strength upon which freeboard is based. A

second major class society conference, held in 1955, led to the creation of

working parties on specific topics and, in 1968, to the formation of IACS by

161

IMO Circular FSI/Circ.10 of 4 June 2001 ˂http://docs.imo.org/ ˃ accessed 10

November 2012 162

Shaw, supra note 2, 489

70

seven leading societies. The value of their combined level of technical

knowledge and experience was quickly recognised. In 1969, IACS was

given consultative status with IMO. IACS developed Quality System

Certification Scheme, which assures high standards and quality of

performance of its members.163

Nowadays, class certificate is important not only for marine insurance.

Many others participating in shipping business as charterers, ship buyers

rely on the class of a ship.164

Furthermore, class certificate has relevance for

statutory certification. One of the most important maritime regulatory

conventions, namely SOLAS refers to the standards of classification

societies. For instance, regulation 3-1 of chapter II-1 stipulates that ships

shall be designed, constructed and maintained in compliance with the

structural, mechanical and electrical requirements of a classification society,

which is recognized by the maritime administration in accordance with

relevant provisions of the convention.

Therefore, it is of essential importance to make sure that those

classifications societies acting in both private and public capacities perform

their functions and duties properly and in accordance with international

agreed rules and standards.

5.2.4 Analysis of PSC statistics on performance of ROs

Performance of ROs can be assessed by means of PSC statistics, which is

available in the annual reports of majority of regional MoUs and FSI PSC

reports. It is fairly stated that detainable deficiencies, discovered during PSC

inspections, can be directly attributed to a failure of RO to properly survey

or/and inspect the particular ships.165

In order to see the scale of regional PSC MoUs activities, Annex 2 presents

general PSC data for 2011 that is last available data. Seven regional MoUs,

which have available date on their websites for the last year, are compared.

The total number of inspections of these MoUs is sixty eight thousand five

hundred eighty one wherein the biggest share of forty two percents belongs

to Tokyo MoU and second biggest share of 28 percents belongs to Paris

MoU. The smallest shares of one and two percents belong to Caribbean and

Abuja MoUs respectively. Based on total number of inspections and

detentions pie charts and bar chart on detention percentage in Annex 2,

illustrating graphically as well as with help of the table comparing the

detention percentage among MoUs in Annex 3 to get more comprehensive

picture, it is possible to show that Indian MoU detains ships the most

frequently that may signify that there is a greater concentration of

substandard ships in this region. The general trend in the dynamics of PSC

detentions for all MoUs except Indian MoU has tendency for decreasing

ratio of detention relative to overall number of inspection in the region,

163

Classification Societies - What, Why and How?

<http://www.iacs.org.uk/document/public/explained/Class_WhatWhy&How.PDF>

accessed 05.12.2012 164

Nicolai Lagoni, The Liability of Classification Societies (Springer, Berlin 2007) 11 165

John N.K. Mansell, Flag State Responsibility (Springer, Dordrecht 2009) 191

http://www.iacs.org.uk/document/public/explained/Class_WhatWhy&How.PDF

71

which may indicate that during last year number of substandard ships

became less. The detention percentage in Indian MoU is growing constantly

on the scale of four years periods wherein there is a fluctuation of detention

percentage. The reason for that may be explained that partially some

substandard ships shifted to trade in Indian MoU region. However, it is

rather a suggestion.

Only Paris MoU contains statistics on RO related detentions, which is

available for quite short period from 2005 to 2009 presented in Annex 3. It

shows that percentage is quite stable with minor fluctuations. The share of

RO related detentions out of overall number of detention for this period lies

in the range from 12,18 to 15,9 percents. Taking into consideration that RO

extensively involved for the verification that ships surveyed by them are in

compliance with respective international maritime regulatory conventions, it

may be concluded the performance of RO is rather satisfactory although this

rate is still quite significant. According to IACS statistics, more than 90% of

the world’s cargo-carrying tonnage is covered by the classification design,

construction, and through-life compliance rules and standards set by the 11

member societies of IACS, which also shows their significance as ROs.

Overwhelming majority of IACS classification societies are found in the

section of high performing RO in the Paris MoU list of annual report 2011

and only Indian Register of Shipping indicated as medium performing.

Therefore, it is possible to say that majority of ROs that contribute to RO

related detention percentage are non IACS members although some of non

IACS members also perform quite well as Hellenic Register of Shipping,

Polski Rejestr Statkow, etc. Some ROs appear to be for several years as very

low performing. For example, International Register of Shipping (USA) has

been for last five years and Register of Shipping (Albania) has been for last

four years. In general, it can be seen that those RO performing poorly are

rather small and pertaining to be rather national or operating very limitedly

internationally. However, it should not be forgotten that Prestige and

Erika166

were classed with IACS members. Therefore, it is important to

have such regime governing RO, which allows to exist only for well

performing RO and assure sustainable quality of their performance.

Currently there is a continuous work in IMO for development of the

instrument aimed to provide comprehensive regime for RO that must be

further examined in detail.

5.2.5 Development of IMO Code on ROs

At 84th session of MSC it was agreed to include in the work programme of

the FSI Sub-Committee a high-priority item on “Development of a Code for

Recognized Organizations,”167

which was initiated by the group of 27 states

together with the European Commission.168

To demonstrate necessity of the

code, it was stated that in order to meet their responsibilities in recognizing,

166

Özçayir, supra note 1, 287 167

MSC 84/24 of 23 May 2008 Report of the Maritime Safety Committee on its Eighty-

Fourth Session, par. 22.27 168

MSC 84/22/13 of 6 February 2008 Work Programme: Development of a Code for

Recognized Organizations (RO Code)

72

authorizing and monitoring their ROs, the maritime administrations apply

the existing IMO requirements for ROs. However, these requirements are

presently scattered in different IMO instruments, some of which are

mandatory under SOLAS regulation XI-1/11, whereas others remain

recommendatory, and at present no audit scheme aimed at ROs exists to

verify that these requirements are effectively and uniformly implemented.

The objectives of the code were decided as to assist maritime

administrations in meeting their responsibilities in recognizing, authorizing

and monitoring their ROs; to gather all the applicable RO requirements in a

single IMO mandatory instrument; to amend the existing and applicable

legal framework to ensure that the ROs are correctly audited by qualified

and independent auditors with respect to the code.169

During 18th

session of FSI Sub-Committee prepared a document, which

consolidated the requirements and recommendations of the IMO

conventions, codes and resolutions regarding ROs, and lists the relevant

IMO circulars.170

Next step was elaboration of the draft of RO code on 19th

session of FSI Sub-Committee.171

The intent of the code was defined as to provide flag states with a tool that

will assist in achieving harmonized and consistent global implementation of

requirements established by IMO instruments for the assessment, and

authorization ROs, and guidelines for the monitoring them as well as to

provide flag states with harmonized, transparent, and independent

mechanisms which can assist in the assessment and monitoring of ROs in an

efficient and effective manner.172

The code contains normative references to mandatory IMO instruments not

to reiterate theme, ISO standards on quality management systems, general

criteria for the operation of various types of bodies performing inspection

and guidelines for quality and environmental management systems

auditing.173

Within general requirements for ROs, principles of

independence, impartiality, integrity, competence, transparency,

confidentiality, liability insurance and responsibility are established. There

are also requirements for management and organisation of ROs as quality

policy, documentation requirements (including quality manual, control of

documents, control of records), planning, organization, communication

(including with flag states and other RO), management review. Another set

of requirements with respect to the resources of ROs, which include such

areas as personnel, infrastructure, work environment.

It is important to indicate that certification processes is quite

comprehensively regulated. The ROs shall determine requirements specified

by the flag state, specifically for survey and certification activities;

requirements not stated by the flag state but necessary for specified or

intended use, as determined by the ROs; statutory and regulatory

169

Ibid, par. 4 170

FSI 18/15 of 17 September 2009 Development of a Code for Recognized Organizations:

requirements and recommendations contained in IMO instruments regarding recognized

organizations 171

FSI 19/14 of 17 November 2010 Development of a Code for Recognized Organizations:

report of the Correspondence Group – Part 1 submitted by the United States 172

Ibid, annex, preamble 173

Ibid, annex, part I sec. 3.1

73

requirements applicable to survey and certification activities; and any

additional requirements considered necessary by the ROs.174

The process of

service design and development and control of production is covered there

as well.

The machinery for performance measurement, analysis and subsequently

generation of improvements is installed in the code. The ROs shall plan and

implement the monitoring, measurement, analysis and improvement

processes needing to demonstrate conformity to service requirements, to

ensure conformity of the quality management system, and continually to

improve the effectiveness of the quality management system. This shall

include the determination of applicable methods, including statistical

techniques, and the extent of their use.175

The ROs shall conduct internal

audits at planned intervals to determine whether the authorized activity

conforms to the planned arrangements and that the quality management

system is effectively implemented and maintained, and that a supervisory

system is in place, which monitors the actions and work, carried out by the

organization.176

The monitoring and controlling subassembly require

application of suitable methods for monitoring and measurement of the

quality management system processes. The ROs shall monitor and measure

the vessel’s compliance with statutory requirements and the RO’s rules to

verify that all requirements have been met. In case of discovery of non-

conformities, they must be identified and controlled. As element of

sustainability, ROs are required continually to improve the effectiveness of

the quality management system through the use of the quality policy, quality

objectives, audit results, analysis of data, corrective and preventive actions

and management review. Corrective actions shall be taken to eliminate the

causes of non-conformities in order to prevent recurrence. Moreover, ROs

shall determine action to eliminate the causes of potential non-conformities

in order to prevent their occurrence.

The part two of the code is designed for flag state monitoring of ROs, which

is assigned as a recommendation for flag states in contrast to first mandatory

part. The flag state should establish or participate in an oversight

programme with adequate resources for monitoring of, and communication

with, its ROs in order to ensure that its international obligations are fully

met largely by means of supplementary surveys.177

An oversight programme

may include various monitoring activities, which may, inter alia, consist of

audits, inspections and audit observations. The implementation of the

oversight programme should include, among other, coordinating and

scheduling monitoring activities relevant to the oversight programme;

establishing and maintaining a process for the evaluation of the auditors and

their continual professional development; ensuring the control of records of

the monitoring activities; ensuring review and approval of monitoring

activity reports, and ensuring their distribution to interested parties.178

174

Ibid, annex, part I sec. 8.2.3 175



Ibid, annex, part II sec. 7.1 178

Ibid, annex, part II sec. 8.3.4

74

The code provides also with requirements for training and qualification of

ROs’ technical staff defined, specifications on the survey and certification

functions of ROs acting on behalf of the administration in the first and

second appendices to the part one respectively. Appendix three contains the

minimum list of elements to be included in the written agreement between

the maritime administration and the RO.

On 20th

session of FSI Sub-Committee the vehicle to adopt or amend the RO

code has been designed.179

Three different possible options to adopt the RO

code have been prepared taking into account the procedural guidance to give

full effect to the provisions of certain instruments developed by IMO under

specific IMO conventions. These options are joint MSC and MPEC

resolution, separate MSC and MPEC resolutions and Assembly resolution.

In order to make RO code mandatory, the draft of amendments to relevant

conventions was prepared. Regulation 1 of Chapter XI-1 of SOLAS,

regulation 6, of Annex I, regulation 8 of Annex II, regulation 4 of Annex

IV, regulation 5 of Annex VI of MARPOL, regulation 2-1 of chapter I of

Annex I of Annex B of LOADLINE. Standard provision stipulated to refer

to RO code in the conventions reads as following:

“organizations [including classification societies – for LOADLINE] referred

to in […] of the convention shall be authorized by the Administration in

accordance with the provisions of the present Convention, as supplemented

by the provisions of the Code for recognized organizations (RO Code)

adopted by the Organization by resolution […]”

(a) the provisions of part I of the RO Code shall be fully complied with;

(b) the related guidance contained in part II of the RO Code should be taken

into account to the greatest possible extent in order to achieve a more uniform

implementation of the RO Code;

(c) amendments to part I of the RO Code shall be adopted, brought into force

and take effect in accordance with the provisions of […]; and

(d) part II of the RO Code shall be amended by the Maritime Safety

Committee and the Marine Environment Protection Committee in accordance

with their rules of procedure.”180

The proposed regulation of ROs in the code reflects current position of flag

states according to which flag states have wide discretion to choose ROs. Of

course, the code regulates extensively the activity of ROs and its

relationship with a flag state but main responsibility for ROs compliance

with contemplated regime is entrusted to a flag state. It is not different from

current regime in place, which is proved to be ineffective. Analysis of PSC

statistics clearly show that there is number of ROs with low performance,

which, in fact, are major contributors of RO related detentions. Indeed, it is

why new endeavour is launched to assure that ROs properly discharge their

duties. Considering current two component system (flag state and RO) for

realisation of provisions of international regulatory maritime convention, it

is deemed that there must be a third independent element to be introduced in

order to ensure effectiveness of those two elements. The idea of third

179

FSI 20/13/1 of 23 December 2011 Development of a Code for Recognized

Organizations: instrument to adopt or amend the RO Code and amendments to relevant

IMO instruments to make the RO Code mandatory Note by the Secretariat 180

Ibid, Annex 4, p. 1

75

component is not new. EU model has already employed this principle of

trinity by means of integral cooperation of EU Commission and member

states doing neighbours watch. However, the most challenging question is

how to introduce this third element. It is already partially in place. The

introduction of VIMSAS being an international arrangement in nature

orchestrated by IMO and being contemplated to be mandatory in 2015 will

facilitate the effective discharge of flag state duties. IMO should be that

third element which will harmonically complement the current system. The

proposition of this thesis is to elaborate mechanism of IMO audit according

to which international community through IMO will verify ability to comply

with RO code. Organisations, meeting requirements of RO code, being

verified by IMO audit will be recognised by IMO members. Therefore, flag

states must be confined to choose ROs only from available list of IMO

recognised organisations. The listing approach is not new for IMO. Under

STCW regulation I/7 there exists so-called “white list” of countries assessed

to be properly implementing the convention signifying that those states

appeared on white list, in principal, enjoy the right of recognition by other

parties to the convention of the certificates issued by or on behalf of them.

Subsequently, IMO will monitor performance of ROs through MIMSAS as

minimum. Additional monitoring tools may be devised. Those organisation

which is proved to be substandard must be withdrawn from the list of IMO

ROs. It is entirely believed that this trinity based system involving IMO will

guarantee effectiveness of international maritime regulatory conventions.

However, whether it is possible to implement this idea depends on

malleability of the code as well as current international legal regime in

general that is again dependent on willingness and position of member states

of IMO. Nevertheless, as a matter of brining a piece of innovate substance

to the research it deserves its place in this thesis.

5.3 Consideration of universal PSC regime

Since emergence of first PSC MoU in 1978 there have been developed ten

regional PSC regimes including USCG in the world now. Due to these

significant efforts of PSC authorities, we have been witnessing the trend of

decreasing substandard shipping.181

However, one, who is truly concerned

with the issue of shipping safety and protection of marine environment,

should pose the question whether current 10 regimes are effective enough to

eliminate substandard shipping, of course, with efforts of flag states and

other principal actors in tandem. Eradication of substandard shipping as goal

has not been a possibility of observable future so far. Furthermore, there are

some serious deficiencies of current regimes. It is enough to recall the

failure of PSC to identify Erika as a substandard ship to acknowledge that

some further developments must be triggered. There are some academic

considerations that it is a time to construct one global PSC regime covering

181

See p. 90

76

the whole globe.182

Therefore, this subchapter is devoted to examine this

challenging issue. It will be analysed the need for and possibility of

establishment of universal PSC regime.

In order to understand why global PSC regime is necessary, the

cotemporary problems of the current regional PSC regimes must be

explored in detail. The one and probably the most important downside of

multitude of PSC regimes is an overlap of inspections. Vessels trading on

the tramp market usually ply from one region to anther driven by charterers’

demand. If a ships is inspected in one MoU region then sailing to another

MoU region means the ships may be targeted for another inspection in that

region. It was validly posed the question whether too many inspections

contribute to the seafarers fatigue.183

In interview with the seafarers, it was

revealed that they are overloaded with PSC inspections of different regions.

Of course, it has also a commercial aspect – delay of a ship, which causes

additional expenses in transportation of goods. Another very important

downside is that PSC regimes are not synchronised with each other. There is

no one comprehensive database, which would facilitate the most correct

targeting system. If PSC regimes are not in position of firm cooperation then

it may happen that the shipoperator of a ship with some deficiencies to be

corrected in the next port of call, which is in another region, may not rectify

them. Different standards are applicable in different regions and it creates

serious problem for shipowner to be in compliance with all of them doubled

with different levels of qualification of PSCO in different regions. All of

these reasons dictate for consideration of more harmonised system of PSC

regimes, which may even be one universal PSC regime.

It is appropriate here to mention the words of Mr. Efthimios E. Mitropoulos,

former IMO Secretary-General said during Second Joint Ministerial

Conference of Paris and Tokyo MoUs:

“A huge opportunity now exists to build upon the good foundations that have

already been laid. I believe that a consistent, uniformly applied PSC regime

with global outreach, embracing all the regional schemes and others such as

the United States Coast Guard, should be a common objective. To achieve

this, existing PSC activities need to be harmonized and co-ordinated.”184

To achieve this, for the moment, utopian purpose, obstacles on the way of

its accomplishment must be analysed. The question is whether it is possible

to establish one global PSC regime now. Analysis of regional PSC regimes

in second chapter revealed that there are fundamental differences of regional

MoUs. Mainly, they are scope of applicable instruments, use and approach

of targeting system, and level of stringency of consequences for non-

182

Özçayir, supra note 50, 239; Dilip Mehrotra, ‘Memorandums of Understanding on Port

State Control: The Need for a Global MOU?’ (Master thesis, WMU 2000) 94; Li Jin, ‘A

Study on Development and Perspective of Port State Control’ (Master thesis, WMU 2008)

42; Lin Jianxiang, ‘One Global PSC regime, to be or not to be’ (2007) 5 WMUSC

Publication 12 183

Ibid., Mehrotra, 70 184

Speech by Mr Efthimios E. Mitropoulos on Second Joint Ministerial Conference of the

Paris and Tokyo Memoranda of Understanding on Port State Control, Vancouver, 2

November <2004 http://www.imo.org/blast/mainframe.asp?topic_id=847&doc_id=4418>

accessed 20.11.2012

http://www.imo.org/blast/mainframe.asp?topic_id=847&doc_id=4418

77

conforming vessels. However, besides formal attributes there are other

differences as qualification of PSCO, financing, regional policies, etc.

Furthermore, non-integration of USCG into system of regional MoUs, as it

was shown in subchapter 3.2.3, has own contribution to overall challenges

of establishment of universal PSC regime since USA alone has very long

coastline and significant importance for shipping as one of the centres of

world economy facilitated, mainly, by means of sea transport.

So now, it is possible to answer on the posed question in this subchapter.

Abovementioned differences without making compromises do not allow

establishing one global PSC regime at present time. Therefore, with this

purpose in mind, the further cooperation on harmonisation of PSC regimes

should be fostered. There are number of initiative towards the harmonisation

of regional PSC MoUs.

One of successful form of cooperation is CIC, which was initially

introduced by Paris MOU in 1995. These campaigns normally last a period

of 3 months and focus on a specific area of the ship.185

There are two types

of CIC. One is conducted by regional MoU alone. For example, Black Sea

MoU carried out CIC on harmful substances in 2011.186

Another type is

joint CIC when two or more regional MoUs participate in. For instance, in

the period from 1 September to 30 November 2011 CIC on structural safety

and LOADLINE was carried out jointly by Paris and Tokyo MoUs with

participation of Viña del Mar MoU, Indian MOU, Mediterranean MOU and

Black Sea MOU.187

On more joint CIC of Paris and Tokyo MoUs on fire

safety systems is conducted in 2012. From the press release it was explained

that in practice, the CIC would mean that during a regular PSC inspection

conducted under the regional ship selection criteria within the Paris and

Tokyo MoU regions, the fire safety arrangements, maintenance records and

other applicable documentation would be verified in more detail for

compliance with SOLAS Chapter II-2.188

Another form of cooperation is PSCO training programs. It is accurately

asserted that the success of any PSC regime depends on the officer who is

carrying out the inspection.189

Therefore, to achieve homogeneous standards

of PSC regimes, first, it is essential to strive for uniform standards of

training and qualification of PSCO. There are number of PSCO training

initiatives such as Tokyo MoU basic training course for PSCOs and Paris

MoU Expert Training on Safety and Environment, which provide training

185

Jin, supra note 182, 36 186

Black Sea MoU 2011 Annual Report, p. 3

<http://www.bsmou.org/files.php?file=PDF/2011ANNUALREPORT.pdf > accessed 01

November 2012 187

Tokyo MoU 2011 Annual Report, p. 3 <http://www.tokyo-mou.org/ANN11.pdf>

accessed 01 November 2012 188

Joint Paris and Tokyo MoU Press Release on PSC of 1 June 2012 <http://www.tokyo-

mou.org/Joint%20press%20release%20CIC%20on%20FSS.pdf> accessed 21November

2012 189

Mehrotra, supra note 182, 93

http://www.bsmou.org/files.php?file=PDF/2011ANNUALREPORT.pdf

http://www.tokyo-mou.org/ANN11.pdf

http://www.tokyo-mou.org/Joint%20press%20release%20CIC%20on%20FSS.pdf

http://www.tokyo-mou.org/Joint%20press%20release%20CIC%20on%20FSS.pdf

78

for other MoUs PSCO as well.190

PSCO are also trained with help of IMO

integrated technical cooperation programme.191

FSI Subcommittee facilitates the harmonisation of PSC MoUs. It collects

and summarises PSC data from regional MoUs through its annual progress

reports on PSC. It is a common platform for all MoUs used for cooperation

with each other. Majority of PSC MoUs established direct connection with

each other by means of observer status.

Annual IMO Workshops for PSC MoU Secretaries and Database Managers

contributes to PSC MoUs harmonisation. For example, during last 5th

workshops, which took place from 14 to 16 June 2011 at IMO

Headquarters, several data exchange agreements were signed with IMO,

Paris and Tokyo MoUs had jointly developed, in cooperation with the IMO,

a common system for PSC coding which is in the process of being used by

the Paris and Tokyo MoUs as the basis for collecting and recording PSC

data.192

Exchange of PSC related information plays very important role in the

harmonisation process. Equasis, international database, which was

established after Erika incident for the purpose of greater transparency and

timeliness of shipping safety data in the maritime industry, can be

characterised as a key there, integrating IMO, ILO, regional MoUs, public

authorities, non-governmental international shipping organisations,

organisations involved in shipping safety, marine insurance industry and

others.

There was Quality Shipping Campaign, launched by the European

Commission and the UK Government in November 1997. The Campaign

endeavoured to bring together all players involved in the various fields of

shipping business in an effort to advance marine safety. It was based upon

dialogue between all the marine industry and public authorities and its tools

are, primarily, voluntary measures. As the Quality Shipping Campaign

revealed, one of the greatest shortcomings towards the shipping quality

culture is the lack of transparency in the information relating to the quality

of ships and their operators.193

While much relevant information had been collected and available, it was

scattered and often difficult to access. It was unanimously decided by all

participants representing the whole range of industry professionals

(including ship-owners, cargo owners, insurers, brokers, classification

societies, agents, ports and terminals), to make such information more

accessible.194

The European Commission and the French Maritime Administration

decided to collaborate for development of the information system collating

190

FSI 20/6/2 of 17 November 2011 Harmonization of Port State Control Activities:

Progress report on PSC regimes 191

TC 62/3 of 2 April 2012 Integrated Technical Co-Operation Programme: biennial report

on 2010-2011 note by the Secretariat 192

FSI 20/6 of 18 August 2011 Harmonization of Port State Control Activities: outcome of

the Fifth IMO Workshop for PSC MoU/Agreement Secretaries and Database Managers

note by the Secretariat 193

Information available on the Equasis website

<http://www.equasis.org/EquasisWeb/restricted/About?fs=HomePage> accessed 07.12.12 194

Ibid

http://www.equasis.org/EquasisWeb/restricted/About?fs=HomePage

79

existing safety-related information on ships from both public and private

sources and making it available on the Internet. The main underpinning

principles of Equasis are as follows:

to be a device aimed at reducing substandard shipping limited to

safety-related information on ships;

to be for no commercial purpose;

coverage of the whole world fleet;

dynamic collaboration with all players involved in the maritime

industry;

To be used on a voluntary basis..195

Equasis was established through conclusion of MoU between seven

maritime authorities and EMSA at the IMO in 2000.196

According to the section 2 of the Equasis MoU, there are two types of

participatory involvement in the work of Equasis MoU. Major participants

who have the voting right are represented by three groups: maximum three

maritime authorities from Paris and Tokyo MoU, USCG, EMSA. The others

may participate as observers that is available for IMO and maritime

authorities that have made the commitment to join the Supervisory

Committee as full members but are still investigating the procedures to so.

Supervisory Committee is established, composed of one representative of

each participant, to carry out the specific tasks assigned to it under the MoU.

The committee may invite organisations involved in maritime safety to

participate in its meetings, as non-voting observers. The committee is

responsible for guidance and operation of the Management Unit and the

Technical Unit and approving their annual reports.197

Management Unit is established to be in charge of the daily operation of

Equasis which is intended to operate on a non-profit basis. EMSA hosts the

Management Unit and locate it in its premises at its own cost. The

Management Unit, acting under the guidance of the Supervisory Committee

and within the limits of the resources made available for Equasis. It is

responsible for management of agreements with the providers of

information to Equasis, organizational and logistics support to the

Supervisory Committee and the Editorial; facilitation of the exchange of

information, preparation of summaries and statistics of the information

provided through Equasis and preparation of reports and other functions.

The technical Unit is responsible for develop the information system and

management the Equasis database.198

The Editorial Board is composed of representatives of the participants, and

public and private organizations that provide information to Equasis on a

regular basis. It is responsible for monitoring and ensuring the quality and

accuracy of the information released through Equasis and advising the

195

Ibid 196

Memorandum of Understanding on the establishment of the Equasis information system

(signed 17 May 2000)

<http://www.equasis.org/EquasisWeb/Static/MOA/About/MOU_EN.pdf> accessed

07.12.12 197

Ibid., sec. 5.1 198

Ibid., sec. 5.2

http://www.equasis.org/EquasisWeb/Static/MOA/About/MOU_EN.pdf

80

Management Unit and the Technical Unit on any aspect relating to the

provision of information and data in Equasis.199

Section 7 of the MoU contains a legal disclaimer providing for participants,

and organisations invited as observers to the Supervisory Committee

meetings, accept no liability for the accuracy or reliability of the data

displayed on Equasis, nor any liability in connection with the management,

operation or use of Equasis.

The core section of Equasis MoU is the section four that stipulates that

Equasis to be designed for collection, processing and disseminating quality

and safety-related information on the world merchant ships provided to it

with the approval of the holders of such information.

The information disseminated by Equasis is to be accessible through the

Internet, subject to the conditions laid down by the Supervisory Committee.

There are 45 providers of information to Equasis currently They are 5 PSC

regions (Paris, Tokyo, Viña del Mar, Indian MoUs and USCG), private

inspection organisations (CDI and OCIMF), IACS and other (Türk Loydu)

classification societies, international group of P&I clubs, other providers,

including, inter alia, EMSA, ITF, IHS Fairplay, INTERTANKO,

INTERCARGO.

In the speech of the former IMO Secretary-General, Mr. Mitropoulos made

during Equasis 10th Anniversary Celebration it was said that there was

considerable scope to find synergies between Equasis and GISIS,

information database launched by IMO. For example, the collaboration

between the IMO Secretariat and Equasis in developing the PSC module of

GISIS is typical of the sort of opportunities that can be explored.200

It can be concluded that for the moment it is not possible to think of

universal PSC regime due to number of fundamental impediments among

regional MoU regimes. However, we are, definitely on the way to global

harmonised system of regional PSC regimes, which may provide the basis

for construction of universal PSC regime in future.

199

Ibid, sec. 5.4 200

Speech on Equasis 10th Anniversary Celebration at IMO Headquarters on 29 November

2010 Address by E.E. Mitropoulos, former IMO Secretary-General

<http://www.imo.org/MediaCentre/SecretaryGeneral/SpeechesByTheSecretaryGeneral/Pag

es/Equasis-10th-Anniversary.aspx > accessed 07.12.12

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81

6 Conclusions

International foundation of PSC lies within PSJ, which is, in its turn, based

on international customary law and the fundamental principles of

international law. There are elaborated provisions on PSJ in UNCLOS,

which concern PSEJ and PSC. However, the more comprehensive

provisions, instituting the international legal regime on PSC, are found in

the international maritime conventions such as SOLAS, LOADLINE,

MARPOL, STCW, TONNAGE, AFS and MLC. Although CLC and

BUNKER do not contemplate PSC, they are within the applicable

instruments of several MoUs. Hence, it indicates that PSJ is rather an

evolving concept. It shall be concluded that there is no a general right of

access to foreign ports. Nevertheless, there are certain limitations of port

state jurisdiction to deny access to foreign ships imposed by international

trade law and UNCLOS.

The PSC framework and mechanism consist of several levels of norms of

different nature including the international legal regime as a first level. The

next level lies within the IMO guidelines, which provide the internationally

recommendatory framework on which, further, the regional MoUs are

based. The last level in this chain is particular state’s arrangements on PSC.

Each level has own peculiarities: a scope, legal nature, application, etc.

It must be underlined that the IMO resolutions, providing for the guidelines

on PSC, have an non-obligatory nature. Nevertheless, the significant volume

of provisions of the IMO guidelines on PSC are incorporated into the

regional MoUs that indicates a considerable success of IMO to bring the

global consistent regime of PSC. However, the regional MoUs as well as the

IMO guidelines fall within a category of soft law. In fact, the regional MoUs

are administrative agreements, which do not create internationally binding

obligations for state parties. They are aimed to build a framework of

cooperation among the maritime authorities of a region or the group of

states with a similar position on PSC. The regional MoUs provide

uniformity and harmonization for application, among participating states, of

the right of a port state to ascertain that calling ships are in compliance with

internationally agreed rules and standards mainly on maritime safety and

protection of marine environment within their PSJ.

It is possible to distinguish ten regional PSC regimes, which cover almost

the whole globe, namely nine regional MoUs and USCG PSC programme,

which stands alone as the national arrangement on PSC of USA. Several

conclusions may be deduced form the comparison of the regional MoUs.

First, the MoUs have a common structural architecture. It is comprised of a

preamble, sections on general commitments, relevant instruments,

inspection procedures, rectification and detention, provision of information,

operational violations, training programmes and seminars, organization,

financial mechanism, amendments, administrative provisions and annexes

where relevant. Second, the majority of MoUs uses the typical wording of

provisions. Paris MoU is almost completely distinguished from the rest of

the MoUs as it uses own wording and some conceptually different

82

provisions which, in general, can be characterised as much more stringent

and effective. It is possible to find some provisions of Tokyo MoU, which

were adopted from Paris MoU. However, in general, Tokyo MoU is

different from other regional PSC MoUs. It is also possible to find some

common provisions just between Tokyo and Indian MoU. There is a group

of the MoUs, which are quite similar with each other, namely Black Sea,

Abuja, Mediterranean, Riyadh, Indian MoUs within which Abuja and

Mediterranean MoUs are almost identical. Caribbean MoU is quite similar

with this group. However, it employs own wording in many cases and uses

not all typical provisions. Based on wording of provisions, Viña del Mar

MoU can be almost completely distinguished from the rest of MoUs,

although same typical provisions are used. The distinctive characteristics for

all MoUs are applicable instruments and the selection scheme for ships to be

inspected. Another major difference of Paris and Tokyo MoU from the rest

is use of multi-faceted listing system showing performance of flag states and

ROs, which is utilised in the selection scheme. Paris MoU inspection and

selection scheme, as the most sophisticated in contrast to Tokyo MoU, is

based on the ship risk profile scheme with range of different factors. Among

other factors of the scheme, there are the black, grey and white list for flag

state and ROs performance, which are used for the assessment of ships’

priority of an inspection. Another peculiarity of Paris MoU, which, in fact,

distinguishes it from the rest of MoUs, is banning those ships, which are

systematically found substandard. Finally, uniqueness of Paris MoU also

consists in that it is a regime with the regime inside. EU states, which are

party to Paris MoU, shall comply with the EU legislation on PSC, which

incorporates Paris MoU and makes it obligatory within EU. Due to its

peculiarities, Paris MoU can be characterised as most rigorous as well as the

most effective in achieving aimed goal to eliminate substandard ships from

its waters. The PSC detention dynamics shows that Paris MoU has the

lowest detention rate. Since 1995, the Paris MoU detention rate dropped in

three times, which clearly indicates its effectiveness.

USCG PSC programme is quite different from the regional MoUs. The main

body of norms on PSC is found in USCG directives, which as well as the

regional MoUs have no status of law. Nevertheless, USCG PSC programme

has a legal foundation in the federal primary and secondary legislation but it

can be characterised as lacking consistency with the international maritime

conventions to which USA is a state party. Those provisions are too

selective and concern only few conventions.

The comparison of PSC in UK and Ukraine clearly shows that there are

different standards and approaches in the implementation of PSC on the

national level. Where UK legislation on PSC is quite comprehensive,

Ukrainian legislation is not only outdated and scattered but it does not

address the specifically sensitive issue of undue detention or delay.

PSC detention has several legal implications. The international maritime

conventions, employing PSC, envisage that if a ship is unduly detained or

delayed, it shall be entitled to compensation for any loss or damage

suffered. However, this provision does not solve a potential problem as it

must be properly implemented into the national legislation. Furthermore, the

Lantau Peak case has shown that even the national legislation on PSC may

83

be misinterpreted by a judge. Therefore, it must be clearly drafted in line

with the international maritime conventions and even with the participating

regional MoU(s) if necessary. Nevertheless, the importance of international

law shall not be underestimated as a flag state may bring the case against the

port state before ICJ on behalf of its shipowner, which suffered a loss from

undue detention, subject to the possibility to establish the jurisdiction of ICJ.

In such case, the PSC provisions of the international maritime conventions

become directly applicable before ICJ. Moreover, there is, even, strong

probability that the PSC provisions of the maritime regulatory conventions

may be treated by ICJ as international customary law. Hence, it simplifies

the situation when one party to the international dispute is not a party to the

respective maritime convention. Another important conclusion, which may

be drawn from Lantau Peak case, is when there is some degree of

uncertainty with respect to standards to be applicable to the being inspected

ship, the authority and responsibility for the taking of such a decision rest

with PSC authority of the port state.

PSC detention may have a drastic effect on the contracts of affreightment

and marine insurance. In the case of a marine insurance contract, PSC

detention may signify the breach of implied warranty of seaworthiness by

the shipowner. The breach of implied warranty of seaworthiness entails that

the insurer is discharged from the liability as from the date of the breach of

warranty. However, it is not so easy to give the straight answer with respect

to the contract of affreightment, since in the contract of affreightment, the

implied warranty of seaworthiness is categorised as an innominate term. It

implies that there are two possible scenarios depending on severity of the

breach of the contract. One gives mere entitlement for seeking damages

caused by the breach and another is more severe, that is to say, the right to

repudiate the contract. The right test to determine how to qualify the

innominate term is whether the charterer had been deprived of substantially

the whole benefit of the contract.

There is also another legal implication of PSC detention in relation to time

charterparties. It was found that the risk of PSC detention is usually

allocated within an off-hire clause of time charterparties. Two categories of

time charterparties may be singled out with respect to how the risk of PSC

detention is contemplated within the wording of an off-hire clause. First

category represents off-hire clauses with explicit inclusion of PSC detention

as an off-hire event. Second category embodies the rest of off-hire clauses

where PSC detention as an off-hire event may be construed impliedly. The

sweeping-up phrase or proviso on arrest of the vessel at the suit of a

claimant as an equivalent vis-a-vis the detention by port authorities may be

used to bring PSC detention within the meaning of an off-hire clause as one

of off-hire events.

With that emergence of the regional PSC regimes, first time ability to

interrelate PSC and FSC has appeared through the PSC statistics reviling

data on the detention of the vessels of the particular flag states as an

indicator of flag state performance. Another milestone of the development

of this process was establishment of IMO FSI subcommittee in early

nineteen nineties, which fostered the IMO work on last unmanaged area

with respect to the implementation and enforcement of the IMO mandatory

84

instruments by flag states. The IMO instruments on FSI employ the data

from the regional MoUs to assess flag states. In its turn, PSC uses the

devised mechanisms of FSI instruments for a more effective targeting

system. It must be emphasised that PSC is a complimentary regime to FSC.

However, PSC becomes a duty when a state is a party to the regulatory

maritime conventions such as SOLAS and MARPOL, which employ PSC to

ascertain that the ships calling its port will not proceed to sea until it

presents a danger to the ship, persons onboard or marine environment. In

other words, PSC starts playing its role when FSC fails to assure ships are in

conformity with the respective international rules and standards. PSC has

become the next control layer after FSC. Therefore, PSC is a

complementary mechanism to FSC and it cannot substitute FSC.

There is direct dependence between the performance of ROs and discharge

of technical duties of flag states. The PSC statistics reveal that there are a

number of classification societies, which do not perform their duties in

proper manner. Many ships, which were surveyed with so-called convenient

ROs, have been found with detainable deficiencies.

There is already an extensive international legal framework, which regulates

the activity of ROs. It is based on such regulatory conventions as SOLAS,

MARPOL, LOADLONE, AFS, TONNAGE, MLC as well as the IMO

resolutions A.739(18) and A.789(19) which are made mandatory through

the respective provisions of SOLAS and MARPOL. Moreover, IMO has

also elaborated the model agreement between a flag state and ROs

governing the delegation of statutory certification and harmonised system of

surveys and certifications applicable both for maritime administrations and

ROs. However, it still leaves many issues to discretion of flag states.

Besides the international legal regulation of ROs, there is also the EU

model, which is more stringent.

It is classification societies, which are assigned by flag states

administrations to carry out their functions under the international

conventions. In some cases, they are, to significant extent, responsible for

flag state control functions and even their performance is much more

effective than some other maritime administrations.

The performance of ROs can be assessed by means of the PSC statistics,

which is available in the annual reports of the majority of the regional MoUs

and FSI PSC reports. The general trend in the dynamics of PSC detentions

for all MoUs except Indian MoU has a tendency for decreasing ratio of

detention relative to overall number of inspection in the region, which may

indicate that during the last year the number of substandard ships became

less. The detention percentage in Indian MoU is growing constantly on the

scale of four years periods wherein there is a fluctuation of detention

percentage. The reason for that may be explained that partially some

substandard ships shifted to trade in the Indian MoU region. However, it is

rather suggestion.

Based on the Paris MoU statistics, the majority of ROs, which contribute to

the RO related detention percentage, is non IACS members. Although some

of non IACS members also perform quite well as Hellenic Register of

Shipping, Polski Rejestr Statkow, etc., some ROs appear to be for several

years as very low performing. For example, International Register of

85

Shipping (USA) has been for the last five years and Register of Shipping

(Albania) has been for the last four years. In general, it can be seen that

those ROs performing poorly are rather small and pertaining to be rather

national or operating very limitedly internationally.

In order to strengthen the international regime on ROs, IMO code on ROs

was developed. The intent of the code was defined as to provide flag states

with a tool that will assist in achieving harmonized and consistent global

implementation of requirements established by IMO instruments for the

assessment, and authorization ROs, and guidelines for the monitoring them

as well as to provide flag states with harmonized, transparent, and

independent mechanisms which can assist in the assessment and monitoring

of ROs in an efficient and effective manner. Recently, the vehicle to adopt

or amend the RO code has been designed, which contemplates to make it

mandatory through the inclusion of the respective provisions into SOLAS,

MARPLOL and LOADLINE. The thesis further proposes to reinforce the

effectiveness of the code through the introduction of the IMO listing

mechanism to approve ROs internationally. The proposal is based on the EU

groundwork and the IMO experience in other affiliated spheres.

There are some academic considerations that it is a time to construct one

global PSC regime covering the whole globe. Such cotemporary problems

of the current regional PSC regimes as the overlap and lack of

synchronisation of inspections among the MoUs create holes in the PSC net

for unscrupulous shipowners on one side and contribute to the seafarers

fatigue on the other side. Furthermore, the different standards are applicable

in different regions and, therefore, it creates a serious problem for

shipowner to be in compliance with all of them, doubled with the different

levels of the qualification of PSCO in the different regions. All of these

reasons dictate for consideration of the more harmonised system of PSC

regimes, which may even be one universal PSC regime.

For the moment, it is not possible to establish the universal PSC regime due

to a number of obstacles pertaining to the current PSC regimes. The analysis

of the regional PSC regimes reveals that there are fundamental differences

among the regional MoUs. Mainly, they are a scope of applicable

instruments, the employment and approach of targeting system, and the

level of stringency of consequences for non-conforming vessels. However,

besides formal attributes there are other differences as the qualification of

PSCO, financing, regional policies, etc. Furthermore, non-integration of

USCG into the system of the regional MoUs has own contribution to overall

challenges of the establishment of the universal PSC regime since USA

alone has a very long coastline and significant importance for shipping as

one of the centres of the world economy facilitated, mainly, by means of sea

transport. Nevertheless, the further cooperation on harmonisation of PSC

regimes through the conduction of CIC among the MoUs, organisation of

PSCO training programs and the work of FSI Subcommittee is aimed. With

this purpose in view, Equasis plays a significant role as it is based upon a

dialogue between all members of the marine industry and public authorities

and its tools are, primarily, voluntary measures. In future, Equasis may

become that bridge, which will integrate the private and public sectors for

the elimination of substandard shipping that is a primary target of PSC.

86

Annex 1 Comparison of main PSC MoUs provisions

Description of the provisions 1 2 3 4 5 6 7 8 9 To give effect to the provisions of the Memorandum To establish and maintain an effective system of PSC To consult, co-operate and exchange information with

the other authorities

Application of ILO 147 Convention Application of ILO Conventions Application of the relevant instruments subject to entry

into force and participation

No more favourable treatment principle Application of requirements to non-convention sized

ships

Application of requirements to ships below 500 gross

tonnage

Definition of inspection Minimum standards of inspection More detailed inspection subject to clear grounds Reference of listing of clear grounds cases Rule of constrictions that nothing in the text restricts the

powers of the authorities to take measures within their

jurisdiction

Reference to relevant procedures and guidelines for

control of ships

Special attention (priority) in selecting ships for

inspection

ISM Code inspection procedure reference Application of ship risk profile Application of targeting factor in selection of ships Arrival in advance reporting obligations for ships Banning To avoid inspecting ships, which have been inspected by

any of the other authorities within specified period

Pilots’ duty to inform on apparent anomalies Inspections to be carried out only by duly authorized

persons with specified qualification

Right to use assistance by a person with the required

expertise

Principle of impartiality and independence Issuance and use of PSCO identity card To provide the master with results of the inspection Suspension of an inspection Rectification of deficiencies Detention in the case of clearly hazardous deficiencies Notification of flag state administration in the case of

detention

Notification of RO in the case of detention

87

Allowance for the ship to proceed to another port if

rectification of deficiencies is not possible

Allowance for the ship to proceed to another port in the

case of detention due to absence of VDR

Refusal of access to the ship not complying with

instructions for rectification of deficiencies when sailing

to another non-agreed port

Alerting and detention in the case where the ship not

complying with instructions for rectification of

deficiencies when sailing to another non-agreed port

Access to a specific port in the case of force majeure Detention and refusal of access provisions are without

prejudice to the requirements of relevant instruments or

IMO procedure on notification and reporting procedures

related to PSC

To avoid unduly detaining or delaying a ship Burden of proof for alleged undue detention lies with

the owner or operator of the ship

Exemption from detention due to reporting prior to, upon

arrival or whilst the vessel is in the port, of any damage,

breakdown or deficiency to the ship, its machinery and

equipment subject to rectification

Exemption from detention due to reported accidental

damage where appropriate remedial actions are taken

Allowance, in exceptional circumstances, to call at a port

for temporary repairs for safety reasons to a ship on its

way to a specified repair yard

Source of the information must not be disclosed where

an inspection is initiated based on a report or complaint

Right of appeal against a detention decision Costs relating to follow up inspections Provision of information Operational Violations Training Programmes and Seminars

Colour explanation

Majority Minor

majority

Not

applicable

Black Sea

MoU

Mediterranean

MoU

Abuja

MoU

Riyadh MoU Indian MoU Tokyo

MoU

Paris

MoU

Caribbean

MoU

Viña del

Mar MoU

1 - Black Sea MoU; 2 - Mediterranean MoU; 3- Abuja MoU;; 4 - Riyadh

MoU; 5 - Indian MoU; 6 – Tokyo MoU; 7 - Paris MoU; 8 - Caribbean

MoU; 9 - Viña del Mar MoU

88

Annex 2 General PSC data 2011

28%

42%

8%

7%

12%

2% 1%

Total number of inspections Paris MoU 19058 Tokyo MoU 28627 Indian MoU 5550

Black Sea MoU 4657 Vina del Mar MoU 8584 Abuja MoU 1483

Caribbean MoU 605

21%

48%

19%

8%

3% <1% 1%

Total number of detentions Paris MoU 688 Tokyo MoU 1562 Indian MoU 600 Black Sea MoU 249 Vina del Mar MoU 107 Abuja MoU 11 Caribbean MoU 20

89

24%

48%

9%

9%

10%

<1% <1%

Total number of deficiencies Paris MoU 50738 Tokyo MoU 103549 Indian MoU 19219

Black Sea MoU 19255 Vina del Mar MoU 20941 Abuja MoU 333

Caribbean MoU 1193

0,00%

2,00%

4,00%

6,00%

8,00%

10,00%

12,00%

Paris MoU Tokyo MoU Indian MoU Black Sea MoU

Vina del Mar MoU

Abuja MoU Caribbean MoU

Detention percentage

0

0,5

1

1,5

2

2,5

3

3,5

4

4,5

Paris MoU Tokyo MoU Indian MoU Black Sea MoU

Vina del Mar MoU

Abuja MoU Caribbean MoU

Deficiency rate

90

Annex 3 Dynamics of PSC detentions

The dynamics of PSC detention is measured by detention percentage

relative to all inspections for the particular year. The data gathered from

annual FSI PSC (progress and MoUs annual submission) reports and PSC

MoUs annual report available on their websites. The radar chart illustrates

the dynamics for those MoUs with consistent data for all available years

whereas the table presents the data for all MoUs.

Year 1 2 3 4 5 6 7 8 9 10

2011 3,61 5,46 10,81 5,35 1,24 0,74 3,30 1,04

2010 3,28 5,48 8,54 5,80 1,25 0,76 1,47 7,77 3,62 1,67

2009 4,38 5,78 9,60 5,79 1,78 3,72 10,15 5,11 1,88

2008 4,95 6,91 9,82 6,37 2,50 1,04 1,33 9,96 7,69 2,03

2007 5,46 5,62 9,42 5,161 3,34 0,71 3,97 15,70 7,69 1,82

2006 5,44 5,40 7,92 5,56 1,81 2,05 17,27 9,38 1,35

2005 4,7 5,21 7,18 6,23 2,56 22,69 1,61

2004 5,84 6,51 8,59 6,95 1,9 1,54 9,48 14,54 2,43

0

2

4

6

8

10

12

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

Paris MoU Tokyo MoU Indian MoU

Black Sea MoU Vina del Mar MoU USCG

91

2003 7,03 8,49 9,27 4,76 2,8 1,9 10 1,99

2002 7,98 6,67 5,61 6,28 3,3 2,50

2001 9,09 7,76 5,27 3,52 2,19

2000 9,50 6,87 6,25 2,52

1999 9,15 7,18 3,37

1998 9,06 7,29 4,73

1997 9,66 6,41 7,12

1996 10,70 5,63 6,26

1995 11,21 5,93 6,55

1994 9,41 3,80

1993 5,35

1992 3,97

1991 3,65

1- Paris MoU; 2 - Tokyo MoU; 3 - Indian MoU; 4 - Black Sea MoU;

5 - Vina del Mar MoU; 6 - Abuja MoU; 7 - Caribbean MoU;

8 - Mediterranean MoU; 9 - Riyadh MoU; 10 - USCG

0,00%

2,00%

4,00%

6,00%

8,00%

10,00%

12,00%

14,00%

16,00%

2005 2006 2007 2008 2009

RO detention percetage relative to overall detentions

0,00%

1,00%

2,00%

3,00%

4,00%

5,00%

6,00%

2005 2006 2007 2008 2009

Detention percentage relative to all inspections

RO detention percetage relative to all inspections

Overall detentions and RO detentions dynamics

92

Bibliography

1. Primary sources

1.1. International conventions

Convention on the International Regulations for Preventing

Collisions at Sea, 1972

Convention on Limitation of Liability for Maritime Claims, 1976

ILO Convention (No. 147) concerning Minimum Standards in

Merchant Ships, 1976

International Convention for the Prevention of Pollution from Ships,

1973, as amended. MARPOL: Consolidated edition 2011

(International Maritime Organisation, United Kingdom, 2011)

International Convention for the Safety of Life at Sea, 1914

International Convention for the Safety of Life at Sea, 1974, as

amended. SOLAS: Consolidated edition 2009 (International

Maritime Organisation, United Kingdom, 2009)

International Convention on Load Lines, 1966, as amended. Load

Lines: Consolidated edition 2005 (International Maritime

Organisation, United Kingdom, 2005)

International Convention on Standards of Training, Certification and

Watchkeeping for Seafarers, 1978, as amended. STCW:

Consolidated edition 2011 (International Maritime Organisation,

United Kingdom, 2011)

International Convention on the Control of Harmful Anti-fouling

Systems on Ships, 2001

International Convention on Tonnage Measurement of Ships, 1969

Maritime Labour Convention, 2006

International Convention relating to the Limitation of the Liability of

Owners of Sea-Going Ships, and Protocol of Signature, 1957

Protocol of 1996 to amend the Convention on Limitation of Liability

for Maritime Claims, 1976

United Nations Convention on the Law of the Sea, 1982

1.2. IMO instruments

1.2.1. IMO resolutions

IMO Resolution A.466(12) Procedures for the Control of Ships


IMO Resolution A.542(13) Procedures for the control of ships and

discharges under Annex I of the International Convention for the

Prevention of Pollution from Ships, 1973, as modified by the

Protocol of 1978 relating thereto (adopted 17 November 1983)

IMO Resolution A.597(15) Amendments to the Procedures for the

Control of Ships (adopted 19 November 1987)

93

IMO Resolution A.739(18) Guidelines for the Authorisation of

Organisations acting on behalf of the Administration (adopted 4

November 1993)

IMO Resolution A.742(18) Procedures for the control of operational

requirements related to the safety of ships and pollution prevention


IMO Resolution A.787(19) Procedures for Port State Control


IMO Resolution A.789(19) Specifications on the Survey and

Certification Functions of Recognized Organizations acting on

Behalf of the Administration (adopted 23 November 1995)

IMO Resolution A.847(20) Guidelines to Assist Flag States in the

Implementation of IMO Instruments (adopted 27 November 1997)

IMO Resolution A.881(21) Self-Assessment of Flag State

Performance (adopted 25 November 1999)

IMO Resolution A.882(21) Amendments to the Procedures for Port

State Control(adopted 25 November 1999)

IMO Resolution A.912(22) Self-Assessment of Flag State

Performance (adopted 29 November 2001)

IMO Resolution A.946(23) Voluntary IMO Member State Audit

Scheme (adopted 27 November 2003)

IMO Resolution A.973(24) Code for the Implementation of

Mandatory IMO Instruments (adopted 1 December 2005)

IMO Resolution A.974(24) Framework and Procedures for the

Voluntary IMO Member State Audit Scheme (adopted 1 December

2005)

IMO Resolution A.1018(26) Further Development of the Voluntary

IMO Member State Audit Scheme (adopted 25 November 2009)

IMO Resolution A.1052(27) Procedures for Port State Control, 2011


IMO Resolution A.1053(27) Survey Guidelines under the

Harmonized System of Survey and Certification (HSSC),

2011(adopted 30 November 2011)

Resolution A.1054(27) Code for the Implementation of Mandatory

IMO Instruments (adopted 30 November 2011)

Resolution MEPC.26(23) Procedures for the control of ships and

discharges under Annex II of the International Convention for the

Prevention of Pollution from Ships, 1973, as modified by the

Protocol of 1978 relating thereto MARPOL73/78 (adopted 8 July

1986)

1.2.2. IMO committees working papers and circulars

FSI/Circ.10 of 4 June 2001 List of non-governmental organizations

authorized to carry out surveys and issue certificates on behalf of

Administrations

FSI 17/14 of 12 February 2009 Development of a Code for

Recognized Organizations submitted by Panama

94

FSI 17/14 of 12 February 2009 Development of a Code for

Recognized Organizations: analysis of the factors to be addressed in

the development of a Code submitted by Mongolia

FSI 17/14/1 of 13 February 2009 Development of a Code for

Recognized Organizations: proposed way forward in the

development of a Code for Recognized Organizations submitted by

initiative group of states



the development of a Code submitted by Marshall Islands



the development of a code submitted by Tuvalu and Kiribati

FSI 18/15 of 17 September 2009 Development of a Code for

Recognized Organizations: requirements and recommendations

contained in IMO instruments regarding recognized organizations

FSI 18/15/1 of 14 April 2010 Development of a Code for

Recognized Organizations: proposed key elements for development

of a Code for Recognized Organizations submitted by the Islamic

Republic of Iran

FSI 18/15/2 of 28 April 2010 Development of a Code for

Recognized Organizations: minimum requirements for recognized

organizations submitted by Canada and the United States

FSI 18/15/6 of 18 May 2010 Development of a Code for Recognized

Organizations: gap analysis for development of a Code for

Recognized Organizations submitted by the Republic of Korea

FSI 19/14 of 17 November 2010 Development of a Code for

Recognized Organizations: report of the Correspondence Group –

Part 1 submitted by the United States

FSI 20/6 of 18 August 2011 Harmonization of Port State Control

Activities: outcome of the Fifth IMO Workshop for PSC

MoU/Agreement Secretaries and Database Managers note by the

Secretariat

FSI 20/12 of 21 December 2011Review of the IMO Instruments

Implementation Code: adoption of, and amendment to, the III Code

noted by the Secretariat

FSI 20/13/1 of 23 December 2011 Development of a Code for

Recognized Organizations: instrument to adopt or amend the RO

Code and amendments to relevant IMO instruments to make the RO

Code mandatory Note by the Secretariat

MSC/Circ.710, MEPC/Circ.307 Model Agreement for the

Authorization of Recognized Organizations Acting on behalf of the

Administration

MSC 84/22/13 of 6 February 2008 Work Programme: Development

of a Code for Recognized Organizations (RO Code)

MSC 84/24 of 23 May 2008 Report of the Maritime Safety

Committee on its Eighty-Fourth Session

TC 62/3 of 2 April 2012 Integrated Technical Co-Operation

Programme: biennial report on 2010-2011 note by the Secretariat

95

1.3. Regional MoUs

Latin American Agreement on Port State Control of Vessels, 1992

Memorandum of Understanding on Port State Control for the Indian

Ocean Region, 1998

Memorandum of Understanding on Port State Control for West and

Central African Region, 1999

Memorandum of Understanding on Port State Control in the Asia-

Pacific Region, 1993

Memorandum of Understanding on Port State Control in the Black

Sea Region, 2000

Memorandum of Understanding on Port State Control in the

Caribbean Region, 1996

Memorandum of Understanding on Port State Control in the

Mediterranean Region, 1997

Paris Memorandum of Understanding on Port State Control, 1982

Riyadh Memorandum of Understanding on Port State Control in the

Gulf Region, 2004

1.4. Technical agreements

Memorandum of Understanding on the establishment of the Equasis

information system, 2000

1.5. EU legislation

European Parliament and the Council Directive (EC) 2009/15 on

common rules and standards for ship inspection and survey

organizations and for the relevant activities of maritime

administrations [2009] OJ L131/47

European Parliament and the Council Regulation (EC) 391/2009 on

common rules and standards for ship inspection and survey

organisations [2009] OJ L131/11

European Parliament and the Council Directive (EC) 2009/16 on

port State control [2009] OJ L131/57

1.6. National legislation and ancillary documents

1.6.1. UK

Merchant Shipping Act 1995

Merchant Shipping (Port State Control) Regulations 2011

1.6.2. USA

33 FCR

46 FCR

14 USC

46 USC

USCG Marine Safety Manual, volume I: Administration and

Management

USCG Marine Safety Manual, volume II: Material Inspection

USCG Navigation and Vessel Inspection Circular 06-03

96

1.6.3. Ukraine

Constitution of Ukraine of 28.06.1996 No.254к/96-ВР

Merchant Shipping Code of Ukraine of 09.12.1994 No.277/94-ВР

Regulation on the Ministry of Infrastructure of Ukraine sanctioned

by the Order of President of Ukraine of 12.05.2011 No.581/2011

Regulation on the State Inspection of Ukraine on safety at maritime

and river transport sanctioned by the Order of President of Ukraine

of 08.04.2011 No.447/2011

Resolution of Cabinet of the Ministries of Ukraine of 13.09.2002

No.1371 on the organisation of participation of central executive

authorities in the activity of international organisations, member

thereof is Ukraine

Rules for the control of ships with purpose to assure shipping safety

approved by Order of Ministry of Transport of Ukraine of

17.07.2003 No.545

2. Secondary sources

2.1 Books

Anderson D., Modern Law of The Sea: Selected Essays (Publications

on Ocean Development, Volume 59 Martinus Nijhoff Publishers,

Leiden/Boston 2008)

Churchill R.R., Lowe A.V., The Law of the Sea (3rd edition Juris

Bulishing, Oxford 1999)

Coghlin T., Baker A.W., Kenny J., Kimball J.D., Time Charters (6th

edition Informa Publishing, London 2008) 25.34

Dockray M., Cases and Materials on Carriage of Goods by Sea (3d

edition Cavendish Publishing Limited, London 2004)

Hodges S., Cases and Materials on Marine Insurance Law

(Cavendish Publishing Limited, London 1999)

Kasoulides G.C., Port State Control and Jurisdiction (Martinus

Nijhoff publishers, London 1993)

Lagoni N., The Liability of Classification Societies (Springer, Berlin

2007)

Mansell J., Flag State Responsibility (Springer, Dordrecht 2009)

Molenaar E. J., ‘Port State Jurisdiction: Towards Mandatory and

Comprehensive Use’ in Freestone D., Barnes R., Ong D. (eds), The

law of the Sea: Progress and Prospects (Oxford University Press,

Oxford 2006) 192

Özçayir O.Z., Port State Control (LLP, London 2001)

Merkin R., Marine Insurance Legislation (3d edition LLP, London

2005)

Pourmotamed, Parallel Registration of Ships (Göteborg University,

Sweden 2008)

Shaw M.N., International Law (6th

edn Cambridge University Press,

Cambridge 2008)

Soyer B., Warranties in Marine Insurance (Cavendish Publishing

Limited, London 2001)

97

Thomas R.D., Legal Issues relating to Time Charterparties

(Informa, London 2008)

2.2 Articles

Bang H.S., ‘Port State Jurisdiction and Article 218 of the UN

Convention on the Law of Sea’ (2009) 40 J. Mar. L. & Com. 291

Barchue L.D., ‘The Voluntary IMO Member State Audit Scheme:

An Accountability Regime for States on Maritime Affairs’ (2009) 8

WMU Journal of Maritime Affairs 61

Fitzgerald B.F., ‘Port State Jurisdiction and Marine Pollution Under

UNCLOS III’ (1995) 11 MLAANZ Journal 29

Jianxiang L., ‘One Global PSC regime, to be or not to be’ (2007) 5

WMUSC Publication 12

McDorman T.L., ‘Regional Port State Control Agreements: Some

Issues of International Law’ (2000) 5 Ocean & Coastal L.J. 207

Özçayir O. Z., ‘The Use of Port State Control in Maritime Industry

and Application of the Paris MoU’ (2009) 14 OCLJ 208

2.3 Theses

Anthony A. K., ‘An Analysis of the Voluntary IMO Member State

Audit Scheme’ (Master thesis, WMU 2007)

Brugmann G., ‘Access to Maritime Ports’ (Dr. jur. thesis, The

University of New South Wales 2003)

Fikri I., ‘Flag State Control: an Overview and its Relationship with

Port State Control’ (Master thesis, World Maritime University 2007)

Jianwei Q., ‘Voluntary IMO Member State Audit Scheme: its status,

trend and challenges’ (Master thesis, WMU 2006)

Jin L., ‘A Study on Development and Perspective of Port State

Control’ (Master thesis, WMU 2008)

Mehrotra D., ‘Memorandums of Understanding on Port State

Control: The Need for a Global MOU?’ (Master thesis, WMU 2000)

2.4 Websites

Abuja MoU: http://www.abujamou.org

Black Sea MoU: http://www.bsmou.org

Caribbean MoU: http://www.caribbeanmou.org

Equasis: http://www.equasis.org

Indian MoU: http://www.iomou.org

International Association of Classification Societies:

http://www.iacs.org.uk

International Maritime Organisation: http://www.imo.org

Mediterranean MoU: http://www.medmou.org

Paris MoU: http://www.parismou.org

Riyadh MoU: http://www.riyadhmou.org

Tokyo MoU: http://www.tokyo-mou.org

Viña del Mar MoU: http://www.acuerdolatino.int.ar

United States Coast Guard: http://www.uscg.mil

http://www.abujamou.org/

http://www.bsmou.org/

http://www.caribbeanmou.org/

http://www.equasis.org/

http://www.iomou.org/

http://www.iacs.org.uk/

http://www.imo.org/

http://www.medmou.org/

http://www.parismou.org/

http://www.riyadhmou.org/

http://www.tokyo-mou.org/

http://www.acuerdolatino.int.ar/

http://www.uscg.mil/

98

Table of Cases

ICJ cases and international arbitration awards

Asylum Case (Colombia v Peru) ICJ Rep 17, 266

Military and Paramilitary Activities in and against Nicaragua (Nicaragua

v United States of America), Order of 26 September 1991, ICJ Rep 1991, 47

Saudi Arabia v Arabian American Oil Co (Arb. Trib. 1958) 27 I.L.R. 117

Canadian cases

Budisukma Puncka Sendirian Berhad v Her Majesty the Queen in Right of

Canada [2004] FC 501

Her Majesty the Queen in Right of Canada v Budisukma Puncka Sendirian

Berhad [2005] FCA 267

UK cases

Aquacharm, The [1982] 1 Lloyd’s Rep 7

Berge Sund, The [1993] 2 Lloyd’s Rep 453

Bridgestone Maru No. 3, The [1985] 2 Lloyd’s Rep 62

Court Line v Dant & Russell (1939) 64 Lloyd’s Rep 212

Donoghue v Stevenson [1932] AC 562

Europa, The [1908] P 84

FC Bradley & Sons Ltd v Federal Steam Navigation Co (1926) 24 Lloyd’s

Rep 446

Gibson v Small (1853) 4 HL Cas 353

Hogarth v Miller [1891] AC 48

Hong Kong Fir Shipping Co v Kawasaki [1962] 2 QB 26

Ioanna, The [1985] 2 Lloyd’s Rep 164

Kish v Taylor [1912] AC 604

Leyland Shipping Co v Norwich Union Fire Insurance Co [1918] 1 AC 350,

HL

Laconian Confidence, The [1997] 1 Lloyd’s Rep 139

99

Lyon v Mells (1804) 5 East 428

Mastro Giorgis, The [1983] 2 Lloyd’s Rep 66

McFadden v Blue Star Line [1905] 1 KB 697

Papera Traders Co Ltd v Hyundai Merchant Marine Co Ltd, The Eurasian

Dream [1908] 84

Royal Greek Government v Minister of Transport (1948) 82 Lloyd’s Rep

196

Smith, Hogg v Black Sea and Baltic General Insurance [1940] AC 997

Tattersall v National Steamship Co (1884) 12 QBD 297

Legal Aspects of Port State Control

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